Morgan Furniture Co.

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MORGAN FURNITURE COMPANY and UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL. Case No. 11-CA-195 (formerly .34-CA-195). February 4,1953 Decision and Order On June 19, 1952, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled matter, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act and recommended dismissal of the complaint with respect to such allegations. Thereafter, the General Counsel, the Respondent, and Upholsterers' International Union of North America, AFL, the charging union, herein called the UIU, each filed exceptions to the Intermediate Report, and the Gen- eral Counsel and the Respondent filed supporting briefs., Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. We agree with the Trial Examiner that the Respondent discrimi- natorily selected Garrison and Morris for layoff, respectively, on Jan- uary 2 and January 4, 1950, in violation of Section 8 (1) and (3) of the Act. The facts, fully detailed in the Intermediate Report, fully support the finding of an unlawful motivation on the part of the Respondent : e. g., Superintendent Ball's timely statement that there were "some employees-officers of the UIU that he wanted to get rid of"; that Garrison and Morris (as well as Reid, who will be discussed separately below) were the leading officers in the UIU at the time of their layoff ; and the manifest hostility on the part of the Respondent's President Morgan toward the UIU local, which was related to the attack on the war record of Morgan's brother published in certain local UIU pamphlets, and which was further evidenced by Morgan's ad- 1 On August 12, 1952, the Respondent filed motion for permission to introduce additional evidence. The motion is discussed below. 102 NLRB No. 93. MORGAN FURNITURE COMPANY 945 mission after the election that "he would not [have signed] another contract with the Upholsterers' International Union no way." Both Garrison and Morris, as the record shows, were employees of long standing with the Respondent and possessed a wide variety of plant experience and skill which the Respondent undoubtedly could have utilized economically at the time of their layoff. The Respondent's expressed policy and its practice in making selections for layoff, particularly in view of the drastic changes it undertook in its produc- tion methods and line of manufacture at about the time material herein, was clearly to accord preference to employees with such versa- tile experience and skill. The same preference was applied by the Respondent in determining whether to give an employee a temporary or "permanent" type layoff notice. Garrison and Morris received the Respondent's "permanent" type layoff notice. In connection with Garrison's case, the Trial Examiner found that William Jack West, a laid-off employee, had never been recalled to work by the Respondent, and that therefore the Respondent's conten- tion that Garrison was laid off in order to recall West was without merit. The Trial Examiner's finding as to West was properly based on certain documentary evidence in the record. After the Intermedi- ate Report had been issued, the Respondent filed, on August 12, 1952, motion for permission to introduce additional evidence, which would establish that West was in fact rehired by the Respondent on April 22, 1950. Thereafter, on September 17, 1952, a stipulation exe- cuted on behalf of the Respondent and the General Counsel was filed with the Board. Having duly considered the matter, we hereby grant the Respondent's motion and incorporate in the record the stipulation of the parties, i. e., that William Jack West was reemployed by the Respondent on April 22, 1950, and that during the year 1950 he was paid by the Respondent gross wages in the amount of $1,406.67. How- ever, the correction of the record in this regard does not alter our concurrence in the ultimate conclusions of the Trial Examiner with respect to complainant Garrison. Thus, the contention of the Re- spondent that Garrison was laid off (on January 4, 1950) in order to recall West (on April 22, 1950) remains, in our opinion, without merit. As previously indicated, we believe, like the Trial Examiner, that at the time of their layoff, the Respondent had available employment for which Garrison and Morris were qualified, consistent with the Respondent's nondiscriminatory practices and policies. 2. In Reid'8 case, while we are not satisfied that the record supports the finding that this complainant was discriminatorily discharged on January 3, 1950, we do agree with the Trial Examiner that the Re- spondent unlawfully discriminated against Reid in failing to reem- ploy him in June 1950. 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Unlike Garrison and Morris, Reid, as the Trial Examiner found, had "very little experience except in receiving." On Jan- uary 3, 1950, when Reid was laid off, there were no jobs in receiving. The Trial Examiner found, and we agree, that after Reid's super- seniority status lapsed with expiration of the UIU contract on December 31, 1949, he was no longer entitled to hold the single job available in the classification of stock boy, as against the right of Foster, who was senior to Reid and more efficient. However, the Trial Examiner found that Reid was nevertheless discriminated against on January 3, 1950, because he was given the "permanent" type of layoff notice. This, the Trial Examiner held, was tanta- mount to a discharge and the denial of an additional 6 months' seni- ority rights to which Reid would have been entitled, presumably if he had received the temporary type of layoff notice. The record does not, in our opinion, support this conclusion. The record shows : (1) The UIU contract, in effect until Decem- ber 31, 1949, provided that only "employees laid off for more than 6 months shall lose their seniority." (2) The Respondent's expressed policy, and the instructions issued to its foremen, were to continue to apply the terms of an expired contract until a new one was exe- cuted. Moreover, the record is clear that the Respondent in fact continued to extend seniority rights to permanently laid-off employees for 6 months, and considered itself under obligation to recall such employees during this period. (3) The contract of the Carpen- ters, successor to the UIU, which was executed in April 1950, pro- vided that "All employees laid off temporarily or permanently shall hold seniority rights for a period of six months." (Emphasis added.) (4) The issuance of the "permanent" type of layoff notice to Reid was not an unusual procedure. During the Respondent's continuing reductions in force in the year 1949, of all employees laid off, a sub- stantial portion (about 100) received the Respondent's form of "permanent" notice of layoff, while others received the temporary form of notice. (5) There was no affirmative showing that Reid at the time of his layoff was not to be accorded the additional 6 months' seniority rights. Thus, we find that the Trial Examiner's holding that Reid was not laid off but was discriminatorily discharged on January 3, 1950, is unsupported in fact. (b) However, as already indicated, Reid, in the position of a laid-off employee entitled to 6 months' seniority from January 3, 1950, was unlawfully denied reemployment for which he was un- questionably qualified. Specifically, the record reveals that from June 22 to June 27, 1950, the Respondent undertook to hire, among others, 5 new employees as trainees for the assembly department, because it was then unable to obtain skilled help. A letter to the MORGAN FURNITURE COMPANY 947 Respondent dated June 22, 1950, was sent by the UIU demanding the reinstatement of certain laid-off employees, including Reid. We do not agree with the Trial Examiner that the UIU in making this demand was acting without authority from Reid. In view of the fact that Reid did authorize the UIU to file an unfair labor prac- tice charge on his behalf and to represent him in the instant proceed- ing, we find that the UIU had the implied authority to seek Reid's reinstatement? In any case, as the Trial Examiner found, under the Respondent's settled policy, and its contract obligation with the Car- penters, it was unnecessary for Reid to request reinstatement within 6 months of his layoff, for the Respondent was obligated during this period to recall him automatically. 3. The following clarifications or corrections of the Intermediate Report, which we make, insofar as they conform with our findings above, do not affect the validity of the Trial Examiner's ultimate conclusions, or our agreement therewith. (a) The Trial Examiner found that Morris, Reid, and Garrison were "discharged pursuant to a preconceived plan to rid the plant of all UIU officers." Factually, he concluded that "Morris, Garrison and Reid, and Edwards were the only employees known or believed to be officers or Shop Stewards of the Local UIU on December 31, 1949." The record, however, does not support the conclusion that Mel Anders and Johnie Towe (shop stewards) were not officers of the UIU, or believed by the Respondent to be such on December 31, 1949. Garrison, who was credited by the Trial Examiner, did not testify specifically that the four officers named by him were the only officers of the UIU on this date. Garrison's testimony, contrary to the Trial Examiner, was disputed by Paul Edwards," and by docu- mentary evidence in the record. It is clear, in any event, that apart from Morris, Reid, and Garrison, complainants herein, the names of Edwards, Anders, and Towe appear on the only list of officers sub- mitted by the UIU to the Respondent, and there was no countervail- ing evidence to show that they were not known or believed by the Respondent to be local UIU officers on December 31, 1949 4 (b) In finding that the Respondent unlawfully discriminated against Morris, Reid, and Garrison, the Trial Examiner relied, in Y Cf Ozark Damn Constructors , at at., 99 NLRB 1031. Paul Edwards , sergeant at arms of the local UIU and shop steward of the assembly department as of December 31, 1949, testified that Mel Anders , Johnie Towe, Elis Cham- bers , and Mart Rogers were UIU officers on such date. Chambers and Rogers, however, do not appear on the Respondent 's list of employees whose membership dues, to the UIU were checked off in December 1949. 4 The "known or believed to be officers" would constitute the last list of officers which the Respondent received from the UIU , less those officers who the Respondent knew had revoked their checkoff authorizations . The last list supplied to the Respondent contained the names of 13 officers, excluding trustees, who were thereby to be accorded super- seniority rights under the terms of the UIU contract. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part, upon the factor, asserted in the Intermediate Report, that a Board election was pending when the Respondent severed the em- ployment of these complainants on January 2, 3, and 4, 1950, respec- tively. The record shows that the parties did not execute the consent election agreement which gave rise to the Board election adverted to by the Trial Examiner until January 18, 1950. However, the Carpenters' petition for an election was on file with the Board as of November 2, 1949, and thus it appears that the representation proceed- ing was "pending" at the time in question. The foregoing changes, as we have previously indicated, do not alter our conclusion that the Respondent unlawfully discriminated against Morris, Reid, and Garrison. We are particularly persuaded, on the entire record in the case, that these complainants as chief execu- tive officers of the UIU local,5 and clearly the most active agents of the Union at the Respondent's plant, could reasonably be regarded as the object of the Respondent's avowed purpose of ridding itself of ',some employees-UIU officers," and the victims thereof. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Morgan Furniture Company, Asheville, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Upholsterers' International Union of North America, AFL, or any other labor organization of its em- ployees, or encouraging membership in International Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organiza- tion of its employees, by discharging, laying off, or refusing to rein- state any of its employees because they have joined or assisted any labor organization, or by discriminating in any other manner in regard to the hire and tenure of employment, or any term or condition of employment of any of its employees. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Upholsterers' International Union of North America, AFL, or any other labor organization of its employees, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities, except to the extent that such Garrison was president of the UIU local ; Morris was recording secretary ; and Reid was secretary-treasurer. MORGAN FURNITURE COMPANY 949 rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act : (a) Offer Wiley Morris and Ernest Reid reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, to the extent and in the manner set forth in the section of the Inter- mediate Report entitled "Recommendations." (b) Make whole Wiley Morris, Ernest Reid, and Mitchell Garrison for any loss of pay each of them may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "Recommendations," taking into consideration the possibility that one or more of them might have been laid off in the reduction of the work force, even if a nondiscriminatory basis of selection had been applied. (c) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amount of back pay due under the terms of this Order. (d) Post at its plant at Asheville, North Carolina, copies of the notice attached to the Intermediate Report, marked "Appendix G." 6 Copies of the said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminated against Stokes McClellen, Annie Ada Foxx, Maude Burleson, Tillie McClellen, or Della Redmond, and that Ernest Reid was discrimina- torily discharged, as distinguished from discriminatorily refused reinstatement. "These notices, however, shall be, and they hereby are, amended by striking from line 4 thereof the words "The recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision, and Order." In the event that this Order is enforced by decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 250983-vol. 102-53-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report This proceeding involves allegations that Morgan Furniture Company, Ashe- ville, North Carolina, herein called the Respondent, discharged eight named employees,' and has refused or failed to reinstate them, because they joined or assisted Upholsterers' International Union of North America, AFL, the charg- ing party, herein called the UIU, or engaged in concerted activities. It is alleged that the discharges discouraged membership in the UIU and encouraged membership in another unnamed labor organization by discrimination in regard to hire or tenure of employment, and interfered with, restrained, and coerced the Respondent's employees, thus violating Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. After the issuance of a complaint by the General Counsel 2 and the filing of an answer by the Respondent, a hearing was held before the undersigned Trial Examiner from October 23 to 31, 1951, inclusive, at Asheville, North Carolina. All parties were represented and participated fully in the hearing. The Re- spondent and the General Counsel filed briefs, which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT It is found, and there is no dispute, that (1) the Respondent was engaged in commerce within the meaning of the Act at all material times,' and (2) the UIU and International Brotherhood of Carpenters and Joiners of America, AFL, herein called the Carpenters, are labor organizations within the meaning of the Act. The only disputed issues are whether or not the employees named in the complaint were discriminatorily discharged or denied reinstatement. 1. Sequence of events The Respondent commenced business on July 1, 1946, when it purchased its present plant from Morgan Manufacturing Company' At the time of the pur- chase, the employees of Morgan Manufacturing Company were represented for purposes of collective bargaining by the Carpenters.' When the Respondent purchased the plant from Morgan Manufacturing Company, it retained the em- ployees of Morgan Manufacturing Company insofar as it was possible to do so, I The employees and the dates on which they are alleged to have been discharged are as follows : Stokes McClellen, September 8, 1949 ; Maude Burleson, December 7, 1949; Annie Ada Foxx (also referred to as Annie Foxx), December 7, 1949 ; Wiley Morris ( also re- ferred to as Wiley W. Morris), January 2, 1950; Ernest Reid, January 3, 1950; Mitchell Garrison, January 4, 1950; Tillie McClellen (also referred to as Tillie L. McClellen), January 20, 1950; and Della Redmond (also referred to as Della J. Redmon), January 20, 1950. 2 The designation General Counsel is intended to include the General Counsel of the National Labor Relations Board and his representatives at the hearing. ' The Respondent is a Delaware corporation engaged in the manufacture and sale of furniture, with its principal place of business at Asheville, North Carolina. During the year preceding the hearing, the Respondent shipped finished products exceeding $100,000 in value to points outside the State of North Carolina. * Morgan Manufacturing Company is a separate corporation engaged in the manufacture and sale of furniture parts, known as "dimension stock." It currently operates a plant at Black Mountain, North Carolina. The same individual is president of Morgan Manufac- turing Company and of the Respondent. ' The Carpenters won a consent election and was certified by the Board on May 21, 1941, as the bargaining agent for Morgan Manufacturing Company's production and maintenance employees. Case No. 5-R-724. MORGAN FURNITURE COMPANY 951 and continued to honor the existing collective bargaining contract which Morgan Manufacturing Company had entered into with the Carpenters. As the result of a consent election in which the UIU defeated the incumbent Carpenters, the Board certified the UIU as the bargaining agent of the Respondent's production and maintenance employees on September 3, 1948 a On August 2, 1948, after the election but before the certification issued, the UIU and the Respondent entered into a collective bargaining agreement for a term of 1 year. In Febru- ary 1949, the parties modified this contract and extended its term to December 31, 1949. The number of employees working for the Respondent reached a peak of approximately 450 early in 1948, but declined thereafter until, during most of 1949, the number of employees fluctuated around 100. In the summer of 1949 the Respondent was primarily engaged in producing 2 types of furniture. One, French Provincial (also known as the 800 series), was expensive traditional furniture, requiring hand painting and other hand work incident to decorating. The other, called the Spacemaker (also known as the 2100 series ), was modern, incorporating many features of construction radically different from those found in conventional furniture. The Respondent sustained substantial losses in the fiscal years ending June 30, 1947, 1948, and 1949. By the fall of 1949, its financial condition was grave. To meet this crisis, the Respondent decided to abandon manufacture of the French Provincial suite except for "fill-in" orders, and to manufacture instead 2 modern suites in the lower-price field, called the Homemaker and Voguemaker lines (also known respectively as the 3200 and 3500 series ). It was expected that the manufacture of these cheaper suites would, among other things, permit a reduction in the Respondent's working force to approximately 85 employees. Production of these new suites started early in December 1949. In the meantime, the UIU's local at the Respondent's plant had been having difficulties. On September 8, 1949, Stokes McClellen, its vice president, was discharged by the Respondent under circumstances described below. During the months of October, November, and December, 1949, a large number of UIU members resigned and notified the Respondent that they revoked their dues checkoffs.7 As the UIU's contract approached its termination, the Carpenters began an organizational campaign designed to unseat the UIU as bargaining agent. On November 2, 1949, the Carpenters filed a representation petition with the Board, seeking bargaining rights for the Respondent's production and maintenance employees e On the same day, the UIU filed unfair labor practice charges with the Board alleging that the Respondent had violated Section 8 (a) (1) and (2) of the Act. These charges resulted in a settlement agreement B On December 9 Case No. 34-RC-49. 7 Article 1, section 3 of the contract between the Respondent and the UIU provided for voluntary checkoff of union dues, based on the employee 's signed and written authoriza- tion. terminable on 30 days' written notice. During October, when the Respondent's work force numbered slightly over 100, 95 employees' dues were being checked off to the UIU. By December of that year, when the number of employees in the Respondent's plant fluc- tuated close to 100, the number of employees whose dues were checked off to the UIU had fallen to 20, 6 of whom revoked their checkoffs during that month . The UIU had only 17 paid-up members on December 31, 1949. B Case No. 34-RC-170. B Case No. 34-CA-180. On January 4, 1950 , the UIU filed amended charges eliminating the charge of violation of Section S (a) (2) of the Act. On January 20, 1930, the Regional Director of the Board approved the settlement agreement, which had been signed by the Respondent and the UIU. This agreement required the Respondent to post notices to its employees that it would not interfere with, restrain, or coerce them in the exercise of their right to self-organization. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 31, 1949, the contract between the Respondent and the UIU expired, and no new contract was executed by the parties. On January 18, 1950, the UIU, the Carpenters, and the Respondent signed a consent election agreement. The election, held on January 31, 1950, resulted in a victory for the Carpenters. No objections to the conduct of the election were filed by any party. Accordingly, the Carpenters was certified as the col- lective bargaining agent of the Respondent's production and maintenance em- ployees on February 15, 1950. Thereafter, the Respondent and the Carpenters signed a collective bargaining contract, effective until May 1, 1951. In the meantime, pursuant to its program of manufacturing less expensive furniture, the Respondent laid off a number of employees in December 1949 and January 1950, prior to the Board election. Among these were seven of the employees alleged herein to have been discriminatorily discharged. On February 2, 1950, the UIU filed the instant unfair labor practice charges against the Respondent. In June 1950 the Respondent began the manufacture of television cabinets. This necessitated a substantial expansion in the Respondent's working force. In fact, by the late fall of 1950, the working force had more than doubled and there were 278 employees working for the Respondent at the peak of this expansion. On June 22, 1950, the UIU wrote to the Respondent, demanding that the employees named in the charges be reinstated to their former positions. So far as the record shows, the Respondent did not reply. 2. The Respondent's anti-UIU and pro-Carpenters animus The General Counsel points to a number of events as indicating the anti-UIU attitude of the Respondent. Some of these events will now be discussed. a. David V. Morgan, Jr. In August 1949 the UIU was engaged in a campaign to organize the employees of Morgan Manufacturing Company, who were then represented by the Car- pentersl° In the course of this campaign, the UIU issued a bulletin entitled "Black Magic." David V. Morgan, Jr., president of both the Respondent and Morgan Manufacturing Company, considered this pamphlet a personal attack upon his brother's military record, and described it as "some of the most scurrilous, some of the most vicious literature that ever came to my attention." He therefore contacted Carl S. Bradley, international representative of the UIU and business agent for the local, in an attempt to have the bulletin "dis- avowed." Following this, the UIU published an "apology," which Morgan described as "even more scurrilous in many ways" than the first document. Morgan investigated and became convinced that Bradley helped to distribute the second pamphlet. Morgan brought the matter to the attention of the inter- national president of the UIU and two members of the United States Senate. Morgan then forbade Bradley to come on the Respondent's premises." After this Morgan continued to meet with Bradley as representative of the UIU, but all such meetings were held outside the Respondent's premises. Admittedly, Morgan's reactions to this incident "were bitter," and he found it "painful" to meet with Bradley thereafter. While Morgan referred to the matter as "personal," it is clear that Bradley's role was that of a UIU repre- 10 On June 3, 1949, the UIU filed a representation petition with respect to the employees of Morgan Manufacturing Company. Thereafter , the Regional Director issued a notice of hearing, but withdrew the notice of hearing on October 12, 1949. Case No. 34-RC-144 " Article I, section 6, of the contract between the Respondent and the UIU provided that the UIU's business agent could only visit the plant with the consent of the Respondent's director of industrial relations. MORGAN FURNITURE' COMPANY 953 sentative, not that of a private individual. This was understood by Morgan, as shown by his complaint to the UIU's international president. Moreover, it is clear that Morgan's resentment against this UIU official was inevitably bound to color his feelings vis a vis the entire organization. Finally, Morgan's deep resentment which this incident called forth was lasting, as indicated by his testimony that the affair "was one about which I had, and still have very strong feelings." I conclude that, since August 1950, Morgan has had an antagonistic attitude toward the UIU" Further evidence of this attitude is found in Waldrop's undenied testimony that , after the Board election of January 1950, Morgan came to him in the plant while he was working and said "that he was glad that we won the election ; that he thought I already knowed that he would not sign another contract with the Upholsterer's International Union no way." 'a b. Gay Ball Several of the Respondent's supervisors and nonsupervisory employees gathered in the home of employee Dennis Williams sometime in October, Novem- ber, or December, 1949. This gathering took place on a Saturday afternoon, not during working hours. It was attended by Gay Ball, Ralph Payne, Dennis Wil- liams, Lee Holcomb, J. R. Emory, Artie Burrell, Phil Waldrop, and Mart Rogers" Before discussing what took place at this gathering, it is advisable to state briefly certain facts concerning the people present. Ball has been superintendent of the Respondent's plant since February or March 1949. Payne has been foreman of the finishing department since May 1949. Prior to that time, as a nonsupervisory employee of the Respondent, he had belonged to the Carpenters and also to the UIU. Williams had been fore- man of the finishing department for a brief period of 3 or 4 weeks in April or May 1949, before Payne became foreman. Ever since Payne has been foreman, Williams has been a group leader in the finishing department. He had been a member of the UIU, but had resigned. At the time of the meeting, Williams was recording secretary of the Carpenters' local. He admittedly,had "quite a bit" to do with the Carpenters' organizing campaign in the fall of 1949, and bad distributed mimeographed forms for the employees to use in resigning from the UIU." Burrell was a rank-and-file employee who had resigned from the UIU "This conclusion is not to be taken as a criticism of Morgan , or a finding that the re- sentment felt by him constituted, in itself, a violation of law . It is not my function to decide whether this reaction was justified or unjustified ; I merely find, as it fact , that it existed. 13 This conversation , according to Waldrop , took place in the presence of employee Homer Johnson. None of the parties called Johnson as a witness . Morgan testified for the Respondent, but made no reference to this conversation. 14 The General Counsel contends that this was a meeting of the Carpenters ' organizing committee , and that it was planned in advance. The Respondent , conversely, maintains that it was merely a social gathering spontaneously decided upon that morning while the people involved were in a poolroom . I find it unnecessary to decide this issue. 16 The General Counsel maintains that Williams was an agent of the Respondent, and that Ball used Williams as a "tool" and persuaded Williams to use his home for the meet- ing. Williams and Ball were personal friends . Both testified without contradiction that Ball had never requested Williams to organize the Respondent's employees on behalf of the Carpenters. Moreover, as a group leader, Williams had no power to hire, discharge, or effectively to recommend the hiring or discharging of employees under him. Accord- ingly, it is found that Williams was neither a supervisor nor an agent of the Respondent at the time of the meeting. The Respondent's motion to strike testimony with respect to conversations between Williams and other nonsupervisory employees not in the presence of any supervisor, upon which ruling was reserved, is therefore granted. In so deciding, I have not relied upon the fact that Williams signed refusal-to-bargain charges filed with the Board against the Respondent in October 1951 . Case No. 34-CA-386. His conduct in that respect is immaterial in determining his status in the fall of 1949. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the fall of 1949. At the time of the meeting. he was president of the Car- penter's local." Waldrop was a nonsupervisory employee who had been presi- dent of UIU local, but had resigned after a disagreement with the vice president of the local. Some weeks after Waldrop resigned from the UIU, he joined the Carpenters, a fact which was known to Ball. Waldrop was active on behalf of the Carpenters during the organizing campaign in the fall of 1949, and later became chairman of the Carpenters' local negotiating committee. Holcomb, a nonsupervisory employee, had formerly been a member of the Carpenters for 7 years, and had held the office of treasurer until the UIU became the bargain- ing representative of the Respondent's employees in 1948. At the time of the gathering, Holcomb was treasurer of the Carpenters' local. Rogers was a rank- and-file employee who had been shop steward of the UIU but had resigned. He helped the Carpenters in its organizing campaign in the fall of 1949. Emory was a nonsupervisory employee and a member of the Carpenters at the time of the gathering. Thus, all the nonsupervisory employees present were either members of, or active on behalf of, the Carpenters. At the time of the meeting, the employees knew of the plan to abandon the manufacture of more expensive furniture in favor of producing cheaper suites, and rumors in the plant had indicated the possibility of a wage cut or a reduc- tion in the size of the Respondent's working force. These matters were dis- cussed at the meeting, but the witnesses were in conflict as to what occurred. According to Waldrop, a witness for the General Counsel, Ball "addressed" the others present, stating that there had been rumors in the plant that if the Car- penters "got back in" there would be wage cuts and the employees would lose their insurance. Ball assured those present that if the Carpenters got back in there would be no wage cut. Ball then asked if those present would have any objection to his including in the pending layoff, officers of the UIU "that he wanted to get rid of." The others replied that they had no objection. Burrell, however, questioned the advisability of laying off employee Wiley Morris, on the ground that Morris "had been so cooperative in getting along with us," and had resigned from the UIU." There was then some discussion as to Morris' layoff, but Waldrop did not testify as to the ultimate decision. The testimony of Waldrop was substantiated by that of Holcomb, who was also a witness for the General Counsel. Holcomb testified that there were rumors in the plant that the Respondent would cut wages as soon as the Carpenters became the bar- gaining representative. Ball stated that be had heard these rumors, but that there would not be any wage cut, merely "some adjustments." Someone then brought up the subject of layoffs, and Burrell said he had a list of the employees he wanted Ball to lay off, and Ball replied : "You know the ones that you want laid off." He further testified that there was no mention of the names of the specific employees to be laid off. The testimony of Waldrop and Holcomb set forth above does not agree with the version of the meeting given by Ball, Payne, Burrell, Williams, Rogers or Emory, witnesses for the Respondent. In effect, the Respondent's witnesses 1e The General Counsel contends that Burrell was an agent of the Respondent. Both Burrell and Ball testified without contradiction that Ball had never requested Burrell to campaign on behalf of the Carpenters. Accordingly, it is found that Burrell was not an agent of the Respondent. The Respondent's motion to strike testimony regarding any conversations between Burrell and other nonsupervisory employees not in the presence of any supervisor, upon which ruling was reserved, is therefore granted In reaching this conclusion I have not relied upon the fact that Burrell called a strike against the Respond- ent in March 1950. His conduct in that respect is immaterial in determining his status in the fall of 1949. 11 As will appear below, Morris had not resigned from the UIU. MORGAN FURNITURE COMPANY 955 testified that Ball and Payne told the others that the switch to the production of less expensive suites would result in a reduction of the Respondent's working force, but assured them that their wages would not be cut. They denied that any one present had discussed any individual employees to be laid off, or that there had been any discussion of the UIU or the Carpenters. Specifically, Wil- liams denied that there had been any mention of discharging or laying off the UIU officers, or that Burrell had addressed any such question or statement to Ball. Waldrop and Holcomb impressed me as being reliable witnesses. I there- fore adopt their version of this gathering and reject that of the Respondent's witnesses.18 Accordingly, I find that, during the course of this meeting, Ball voiced his intent to include the UIU local officers in the impending layoff, and that the name of Wiley Morris specifically was discussed. This conclusion is bolstered by the undenied testimony of Mitchell Garrison, one of the employees whose discharge is here in question and a witness for the General Counsel, that in October 1949, during a meeting with a UIU committee concerning Stokes McClellen's discharge, Ball told Morris : "There is a possibility that none of you will be here."" Other incidents likewise indicate Ball's preference for the Carpenters and antagonism toward the UIU. Waldrop testified without contradiction as follows : Q. During this election campaign between the Carpenters and the Up- holsterers', did you ever hold any conversation with relation to that cam- paign with Mr. Ball yourself in the plant? A. Yes, sir, Gay [Ball], he come down to my department in the glass room and he came in and asked me how was we getting along, and I told him .. . we were doing all right, and he just said if there was any way he could be of any assistance to us why to let him know, just general talk, I can't tell exactly what went on. Q. Was this talk in relation to the campaign? A. Yes, sir, to the organizing of the Carpenters. Q. Do you recollect approximately what time . . . this conversation oc- curred? A. No, sir, I can't ; it was during the day some time, I don't remember. Q. Was it during the Fall? A. Yes, sir, it was before the election some time. Della Redmond, a witness for the General Counsel, and one of the employees whose discharge is here in question, testified that less than a month before January 20, 1950, she was working close to the worktable of employee Emmons McDaris. McDaris was engaged in a conversation with Ball. According to Redmond, "they were talking low," and she was unable to hear the conversation because a machine was running and making noise. Without warning, the ma- chine was shut down and she overheard Ball say to McDaris : "All that didn't turn over, would be out of a job." Ball, a witness for the Respondent, testified that he did not recall having made any such statement. McDaris was not called '- In reaching this conclusion , I have taken into consideration that, at the time he testified , Waldrop was a rank -and-file member of another UIU local at a different plant, and that he voluntarily left the Respondent's employ and later unsuccessfully attempted to be reemployed there. I do not believe that these facts detract from his credibility or demonstrate his hostility to the Respondent sufficiently to overcome my impressions that he was a sincere and forthright witness. a, Waldrop testified that, before the election, Burrell spoke to him several times in the plant and said that the Respondent "was going to get rid of" the UIU officers after the UIU contract expired. This testimony is not relied upon, as it falls under the ban of testimony of Burrell's conversations discussed in footnote 16. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a witness by any of the parties. In view of Ball's failure directly to deny having made the alleged statement, the generally confused and conflicting nature of his testimony, and his demeanor on the stand, I credit Redmond's version of this incident. It is reasonable to infer, and I find, that Ball's statement to Mc- Daris was intended to convey to McDaris the idea that any employee who did not desert the UIU in favor of the Carpenters was in danger of losing his job. These two incidents, especially when viewed in connection with Ball's state- ments during the gathering at Williams' home, establish Ball's anti-UIU and pro-Carpenters animus, and his determination after October, November, or December, 1949, to use the pending reduction in force to rid the Respondent of the UIU officers." 3. The discharge of Stokes McClellen a. Facts Stokes McClellen commenced to work for the Morgan Manufacturing Com- pany in 1942 as a spray operator in the finishing department, at a rate of 50 cents per hour. When the Respondent took over the Morgan Manufacturing Company's plant in 1946, McClellen-like other employees-was retained by the Respondent. At the time of his discharge on September 8, 1949, he was still a spray operator and his wages had increased to $125 per hour. A few months prior to his discharge, McClellen was told by Ball, and also by his foreman, Payne, that his work was "very satisfactory." James M. Lynch, Jr., the Respondent's sales manager and assistant plant manager, a witness for the Respondent, referred to McClellen in his testimony as "a good spray operator." McClellen was a member of the UIU. Late in August or early in September 1949, he was elected vice president of UIU local. The Respondent was promptly notified that McClellen had been elected to this office." Among the plant rules adopted by the Respondent, and attached to the con- tract between the UIU and the Respondent, was one which read : 22 "Employees must not smoke within the plant area." Following this under a column headed "How to handle," under a subheading "first time," appears the word "discharge." This plant rule was promptly posted on a bulletin board, and "no smoking" signs also were posted throughout the plant. The record amply demonstrates that this rule against smoking was well known to the employees. S0 The General Counsel maintains that other incidents , not discussed herein , further indicate the anti-UIU animus of the Respondent. I have considered these additional incidents (including an alleged telephone call to Ball from a Carpenters ' organizer and pro-Carpenters solicitation of employees by other nonsupervisory employees on the Respondent's time and property), and find that they do not lend further support to the General Counsel's contention . Accordingly, my finding of the Respondent 's anti-UIU animus is not based upon these additional incidents , but solely upon those related above. u Article VII, sec 10 of the contract between the UIU and the Respondent provided certain special seniority privileges for UIU officers . In order to effectuate this provision of the contract , the UIU from time to time supplied the Respondent with written lists of its officers . One such list, undated, contained the name of McClellan as vice president. Lynch testified that this list was not received until October or November 1949 , and that at the time of McClellen 's discharge he did not know that McClellen was an officer of the UIU. On the other hand , Mitchell Garrison, president of the UIU local, testified that this list was given to the Respondent while McClellan was still employed by the Respondent ; Ball testified that the Respondent had been notified that McClellan was an officer of the UIU ; and McClellan testified that the Respondent was notified of his UIU office the week following his election . I reject Lynch's testimony on this point and find that the Respond- ent was aware of McClellan's UIU office at the time of his discharge. 22 Article V, section 9 of the contract between the Respondent and the UIU provides, in part : "The Company rules will be adhered to by the employees and infraction if [sic] the rules will be punished as indicated in the plant rules." MORGAN FURNITURE COMPANY 957 Payne, McClellen's foreman , testified that McClellen would take his spray table out by the river, where smoking was allowed, almost every day for the purpose of cleaning the top. Payne smelled tobacco smoke on McClellen's breath when McClellen would return. The other spray operators did not take their tables out by the river to clean their tops and Payne thought it unnecessary for McClellen to do so. Payne requested McClellen to discontinue this practice, saying he suspected that it was just an excuse to smoke. However, his request went unheeded. Payne therefore secured an extra tabletop for McClellen, and arranged for a cleanup man to take the extra top out by the river and clean it so that McClellen would always have an extra tabletop cleaned off and ready for use. This put an end to McClellen's habit of taking his tabletop out by the river to be cleaned. After that, McClellen started taking empty oil cans to the compressor room (which adjoined the boilerroom) for the purpose of getting oil with which to lubricate the motor of his sprayer. When he would return from these trips, Payne smelled smoke on McClellen's breath, and tried to catch him smoking in the compressor room, but was unsuccessful in doing so. Thereupon, Payne arranged for an entire gallon of oil to be kept at McClellen's place of work. Ball corroborated the testimony of Payne on this point, adding that two maintenance employees, Bill Cody and W. R. Cody, had reported to him that McClellen was smoking in the boilerroom, where smoking was prohibited. Accord- ing to Ball, when he mentioned the Codys' report to McClellen, McClellen denied having smoked in the boilerroom. McClellen, on the other hand, testified that he had had no trouble with respect to smoking prior to his discharge. He testified that he only took his table out by the river to clean the top once or twice a week, and denied that either Payne or Ball had spoken to him with respect to this practice. He testified that he himself had suggested that some- one else clean his tabletop. He denied that he went to the compressor room to get oil more than once or twice a week, or that Payne or Ball had reprimanded him for this practice. He admitted that he had smoked in the boilerroom, but testified that the boilerroom was in a fireproof building. He also testified that he himself suggested that a larger supply of oil be kept on hand for the sprayers so that "we would not have to leave our job." I adopt the version of Payne as more convincing than that of McClellen. It is accordingly found that Payne and Ball had reason to suspect that McClellen was violating the rule against smoking in the plant area. On September 7, 1949, after working hours, a UIU committee held a meeting on the Respondent's property. Among those present was McClellen. The place of this meeting was on a railroad spur which ran between one of the plant buildings and an outside fence surrounding the Respondent's premises. Ad- mittedly, this meeting took place within the Respondent's "plant area." Several of the members of the committee, including McClellen, were smoking. Ephram A. Buckner, a watchman employed by the Respondent, approached the group. As Buckner came up, McClellen was lighting a cigarette. Buckner said to McClellen : "No smoking inside the fence," and pointed to a nearby sign." McClellen there- upon put out his cigarette and thanked Buckner. Buckner did not report this incident to any representative of the Respondent. On the following day, Sep- tember 8, Ball learned of this incident through "general talk in the plant." Ball reported the matter to Lynch and they went together to the home of Buckner, 21 The sign , which read : "NO SMOKING INSIDE FENCE," was posted on a gate leading to several of the buildings , and was well within the outside fence referred to above. Be- neath it was a bucket in which cigarette butts were deposited. Payne testified credibly on cross-examination that the fence referred to in the sign was the outside fence around the entire plant. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was off duty that day. Ball and Lynch told Buckner that they had beard rumors that he had caught McClellen smoking in the plant area the previous day, and asked Buckner if it were true. Buckner replied that the rumors were true. Ball, Lynch, and Buckner then returned to the plant," where Buckner signed a statement which read : On September 7, 1949, I caught Stokes McClelland (sic) smoking on Com- pany property. The location was beside the Railroad about 25 feet inside the gate beside Building #1. The time was between 3: 30 and 4: 00 P. M. and I definitely saw McClelland smoking but could not be sure about the rest of the group. By then it was almost quitting time. 11TeClellen was sent for, and appeared at Lynch's office with Mitchell Garrison, president of the UIU local. Lynch refused to allow Garrison inside the office until after he (Lynch) had talked to McClellen. Lynch asked McClellen if Buckner had caught him smoking in the plant area the previous day, and McClellen admitted the accusation.25 McClellen protested that smoking "had been going on every (sic) since the factory had started there and he knowed it and all the rest knowed it and I didn't see why he wanted to pick on me." Lynch replied that "it didn't make any difference, it was the rule and he was going to enforce it." Lynch thereupon informed McClellen that he was discharged for breaking company rules.26 Garrison then entered and protested the discharge. Lynch informed him that the UIU could file a grievance. The UIU filed a grievance respecting McClellen's discharge in accordance with the contract 24 The parties were unable to reach an agreement, and explored the possibility of arbitration. However, a dispute arose between the parties as to the mechanics of the arbitration, and no arbitration proceeding was held 26 Thereafter, McClellen applied for work at the Respondent's plant once or twice a week for the next 2 or 3 weeks. On one occasion he was told by Lynch that he did not have any job open. In all, McClellen applied for a job at the Respondent's plant about 10 or 12 times, the latest being in the latter part of 1950. The UIU letter to the Respondent of June 22, 1950, listed McClellen as one of the employees whose reinstatement was demanded. He has never been rehired. 24 So far as the discharge of McClellen is concerned , Ball's testimony that he personally did not "have anything to do with" any of the discharges or layoffs here in question is obviously in conflict with his testimony concerning his part in McClellen 's dismissal, and the former is not credited. 25 Lynch testified that McClellen first denied having smoked , but later admitted it when confronted with Buckner. Lynch's version was corroborated by the hearsay testimony of Ball. McClellen testified that he had not denied the accusation at any time . I deem it unnecessary to resolve this conflict. 24 Either Ball or Lynch contacted Morgan, told him that Buckner had made a statement that he had caught McClellen smoking and that McClellen was an officer of the UIU, and asked Morgan what action should be taken. Morgan replied "to follow the plant rule . . . as it had been carried out in the past ." It is not clear, however, whether this took place before or after McClellen's discharge. 27 Article IV, section 3 of the contract between the Respondent and the UIU provided for a grievance procedure 28 Article IV, section 7 of the contract between the Respondent and the UIU reads : "If an agreement is not reached in the grievance procedure as outlined above, and if the dis- pute involves a matter of interpretation of this agreement , it shall be submitted to arbi- tration to be conducted by an arbitrator to be selected from a list supplied by the Federal Mediation and Conciliation Service. The arbitrator's decision shall be final and binding on both parties provided that the arbitrator shall not have the right to add to or subtract from, or otherwise modify this agreement of (sic) any of its provisions." MORGAN FURNITURE COMPANY b. Contentions and conclusions 959, It cannot be seriously denied that the Respondent had in effect a rule prohibit- ing smoking in the "plant area" or that McClellen was apprehended smoking within that area on September 7. The General Counsel contends, however, that "assuming arguendo that there was some enforcement of a `No Smoking' rule ... smoking was tolerated in the area in which McClellen stood" at the time Buckner caught him smoking. Contending that Lynch "failed to make more than the most cursory investigation before discharging McClellen," the General Counsel maintains that McClellen was discharged because of his office in the UIU local, and that the smoking incident of September 7 was seized upon by the Respondent as a pretext for getting rid of McClellen. The Respondent, conversely, contends that McClellen's discharge was not based upon his union activity, but was due solely to his violation of a plant rule. The Respondent insists that the no- smoking rule was strictly enforced at all times in all parts of the plant area, including the railroad spur. Most of the buildings in the Respondent's plant were wooden buildings with composition roofs. Joe Adams, secretary of the Respondent, testified that it was difficult to obtain fire insurance, as the buildings were considered fire hazards." Edward C. Coleman, a partner in the insurance firm which placed the Respond- ent's insurance, testified that the Respondent' s fire insurance rates would have increased if smoking had been permitted, and that some insurance companies might be inclined to "go off the risk" entirely if they knew that smoking had been allowed. He further testified that the insurance companies send inspectors to the Respondent's plant periodically, without prior warning. Moreover, Lynch testified that violations of the rule against smoking threaten the job of every employee in the plant, that management felt that it must enforce the no-smoking rule rigidly in fairness to all employees, and that "every person there in authority carried it out." In short, there was ample incentive for the Respondent to insist upon observance of the no-smoking rule. Every witness questioned on the subject, whether a witness for the General Counsel or the Respondent, testified that the no-smoking rule was enforced at all times and no violator escaped discharge where the violation was reported to a responsible official of the Respondent. Employee Paul Edwards testified that 4 or 5 employees were fired for smoking "a couple of years" before the discharge of McClellen. The place at which this offense occurred was described by Edwards as "the moss house," a spot within the fence surrounding the Respond- ent's plant. Holcomb testified that an employee named Sheppard was discharged by the Respondent for smoking, sometime prior to August 1948. Morgan testified that 3 employees other than McClellen were discharged for smoking, all prior to the discharge of McClellen. He was unable, however, to recall their names. Adams testified that employees had been discharged for violating the rule against smoking, prior to the discharge of McClellen. He was unable to recall how many such incidents had occurred or the names of the employees involved. Lynch testified that he had personally dismissed Rigsby, a fireman employed by the Respondent, for smoking in the boilerroom, and employee Ott King for smoking "just outside" the office. These discharges occurred after McClellen was discharged, King's on June 30, 1950. Lynch further testified that employee Robert Ray and an employee named Smith were likewise discharged by other officials of the Respondent for the same offense, before McClellen' s dismissal. It thus appears that employees apprehended violating the no-smoking rule were 29 Smoking was permitted in the office building, which was fireproof. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged frequently , both before and after the discharge of McClellen . Between 5 and 10 such discharges have occurred. The railroad spur on which McClellen smoked is inside the fence which sur- rounds the plant. Payne testified that the "plant area" referred to in the no- smoking rule includes all territory inside the fence, and that the railroad spur is within the no-smoking area. That the railroad spur was within the forbidden area seems to have been known to several of the General Counsel's witnesses. For example, Morris testified that McClellen was smoking approximately 3 or 4 feet inside the fence, and that smoking outside the fence was permitted. Mc- Clellen himself testified as follows : Q. (By Mr. McCormick ) : How far inside that gate were you when you were smoking? Mr. Adams : I object , he has been over it twice. Q. (By Mr. McCormick) : How far were you from the place where smok- ing was permitted? A. Well, I would not think it was over 3 feet. In view of this testimony, there is no doubt that McClellen knew that he was smoking in an area where the plant rule forbade such conduct. The General Counsel, however, contends that smoking on the railroad spur was customary . Apparently , the General Counsel sought to establish that such smoking was so widespread that it was either known to or should have been known to responsible officials of the Respondent . In this connection , Garrison testified that he had seen other employees smoking there both before and after the discharge of McClellen. Those Garrison testified he had seen smoking there included Payne, but it is not clear whether this occurred before or after May 1949, when Payne became a foreman . Likewise, Garrison named Williams as having smoked in this area, but it is not clear that this occurred during the brief period of 3 or 4 weeks in April or May 1949 during which Williams was a foreman. McClellen testified that "it was a habit for people to smoke there every day at lunch," and he named Foremen Williams , Payne, and Jeb Andrews as having smoked there during 1947 , 1948, and in March , April, or May, 1949. He testified that Payne and Andrews were foremen at the time, but was not sure if Williams was then a foreman . In connection with this testimony , it should be recalled that Williams was a foreman for a short period in April or May 1949 and Payne did not become a foreman until May 1949. Morris testified that em- ployees smoked along the railroad spur "all along the time I worked there," and named Williams as one of the people he had seen doing so. He was not sure, however, whether Williams was a foreman at the time . Morris set the time that he saw Williams smoking as approximately a month before McClellen's dis- charge, but Williams was not a foreman at that time . Tillie McClellen, a sister of Stokes McClellen, and one of the employees whose discharge is in question here, testified that she saw Williams smoking along the railroad spur "at various times" during 1949. Clyde Hensley, who ran a furniture shop opposite the Re- spondent's plant, testified that during the latter part of 1949 and part of 1950, he observed employees smoking along the Respondent's railroad spur, "as high as 25 and 50 [at] a time." However, Hensley had formerly been an employee of the Respondent and an officer of the UIU local , and had been discharged by the Respondent when Lynch accused him of stealing from another employee. He was therefore probably biased against the Respondent . The Respondent 's witnesses contradicted this testimony . Morgan testified that he never saw any employee smoking along the railroad spur, although he passed that spot "several times daily." He further testified that he saw evidence "once or twice" that smoking MORGAN FURNITURE COMPANY 961 had been going on there and warned the watchman to "please keep his eyes open." Payne denied that he had ever smoked inside the fence, either as a foreman or as a rank-and-file employee. Ball testified that he had never seen any cigarette butts along the railroad spur, and while he was superintendent had never heard rumors of anyone smoking in the plant area except McClellen. Coleman testified that he had visited the Respondent's plant "many, many times," but had never observed any employee smoking within the plant area. Both Payne and Williams denied that they had ever smoked inside the fence, either as foremen or as rank- and-file employees. Buckner testified on this matter as follows: Q. Have you ever seen anybody else smoking inside the fence? A. Well, heap of times they will come down through the gate with a cigarette and I will motion at them and they will throw it out. Q. Is that inside the fence or outside? A. Just as they come through the fence when they are coming into work. On the subject of smoking along the railroad spur, the testimony of witnesses for the Respondent was more convincing than that of witnesses for the General Counsel. I therefore find that neither Payne nor Williams, as foremen, smoked in the area ; that while some rank-and-file employees did smoke along the railroad spur it did not occur with such frequency that it was known to, or should have been known to, responsible officials of the Respondent ; that the Respondent's officials were never able to apprehend the violators ; and that any employee caught smoking in that area would have been discharged promptly.80 The General Counsel points to certain incidents as indicating that the Re- spondent, in discharging McClellen, was more interested in ridding itself of q UIU officer than it was in enforcing the rule against smoking. On the day after the discharge of McClellen, Garrison and Morris contacted Ball in order to pro- test McClellen's discharge. During the conversation, they told Ball that 8 or 12 employees were smoking along the railroad spur at that very moment, and offered to show this to Ball. Ball did not reply. Morris testified without contradiction that during a meeting between the UIU and officials of the Respondent with respect to McClellen's discharge on September 13, 1949, Morris told Ball that he had seen an employee smoking in the plant a few days before. When Ball re- quested the name of the offender, Morris refused to divulge his identity. Accord- ing to Morris, Ball then stated : "You can tell me who it was, I would not fire him, an accident is an accident." Morris thereupon demanded to know, if that was the case, why McClellen had been discharged, but Ball did not reply. While these incidents cast some suspicion upon the Respondent's good faith in dis- charging McClellen because of his violation of the no-smoking rule, I deem them insufficient, in themselves, to overcome the fact that the no-smoking rule had always been strictly enforced, that the railroad spur was within the prohibited area, that McClellen had been caught smoking along the railroad spur, that the UIU had agreed previously that the first violation of the no-smoking rule was sufficient reason for discharge without prior warning, that the Respondent had had difficulties previously regarding McClellen's smoking, and that all other known violators had been subjected to similar punishment. The General Counsel also urges that Ball's earlier failure to discharge McClellen when the Codys reported his smoking in the boilerroom indicates that McClellen's infractions of the rule against smoking were tolerated before he became a UIU officer, but led to his dismissal only after he was elected to 80 The General Counsel points to evidence that steam locomotives, emitting sparks, fre- quently used the railroad spur. He argues that this fact indicates that the no-smoking rule was not enforced in that area. I find this contention lacking in merit. 9 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office in the UIU. The short answer to this contention is that in the earlier incident McClellen had denied committing the offense, thus confronting Ball with conflicting stories, whereas in the affair of September 7 McClellen had admitted his guilt. That the Respondent's treatment of the UIU's grievances with respect to McClellen's discharge was not "cursory" is shown by Adams' testimony that, when the UIU did not agree with the Respondent' s point of view, Adams investi- gated the matter "to reassure himself" and made oral inquiry of Coleman as to the effect of the enforcement of the no-smoking rule might have upon the place- ment of fire insurance for the Respondent. Lynch secured affidavits from the Codys with respect to McClellen's previous smoking in the boilerroom, and obtained affidavits from the Respondent's watchmen on the general subject of smoking. Furthermore, the failure of the parties to agree on the mechanics of arbitrating the dispute which arose from McClellen's discharge was, in my opinion, not due to the fault of either party 81 I am convinced that the Respond- ent made a reasonable investigation after the UIU filed the grievance and acted in good faith in refusing to overlook McClellen' s serious defection. In this con- nection, I note Ball's testimony that there were rumors in the plant that if McClellen were permitted to smoke inside the plant area, everybody else was going to do so. In addition, Ball's determination to rid the Respondent of UIU officers was not, so far as the record shows, formed until after McClellen's dismissal . For the reasons outlined above, I conclude that McClellen was dis- charged for violating a company rule, and not, as contended by the General Counsel, for any discriminatory reason 32 I turn now to the Respondent's failure to reinstate McClellen. The General Counsel contends that McClellen was refused reinstatement because of his UIU activities. The record shows that, of all the employees discharged because of smoking, the only one rehired by the Respondent was Ray.' According to Lynch, Ray was reemployed after 2 or 3 years TM Moreover, Lynch testified that he did not know whether Ray came back with or without his accumulated 31 The Respondent submitted a proposal whereby the costs of arbitration would be borne entirely by the losing party , and the arbitrator 's decision would be final "except insofar as an appeal therefrom may be authorized by the laws of the State of North Carolina." The UIU desired the costs to be borne equally, regardless of outcome , and objected to the above- quoted limitation on the finality of the arbitrator's decision. I find unwarranted the General Counsel's characterization of the Respondent 's terms as "draconian" or "impossible of fulfillment by any but the most servile ." However, I agree with the General Counsel's position that the UIU's failure to arbitrate "cannot reflect upon McClellan's right to a remedy in the instant Proceeding." Todd Shipyards Corporation, 98 NLRB 8.14. 12 Pointing to the fact that other members of the UIU committee were smoking on Sep- tember 7 when Buckner approached , the Respondent speculates that if it had intended to use the smoking incident as a pretext it might have rid itself of practically all the im- portant UIU officers "at one fell swoop." However, Buckner's written statement con- cerning the affair shows that he "could not be sure of the rest of the group ." Garrison, who was present at the September 7 incident, testified that Buckner "didn't show any sign" of having seen the others smoking. It is clear that the Respondent lacked proof that anyone other than McClellen had smoked. 33 The General Counsel's contention that King was reemployed after being discharged for smoking is without merit. The record shows that King was laid off in January 1950 (the date 1940 appearing opposite King's name on Respondent 's Exhibit 29 is obviously a typographical error, as the same exhibit shows that King was not employed by Morgan Furniture Company until 1943 ), that he was rehired or recalled on June 26 of the same year, and dismissed for smoking 4 days later. So far as the record indicates, he has not been reemployed by the Respondent since his discharge. 34 The assertion in the General Counsel 's brief that Ray was reemployed only 6 months later (as indicated by page 71 of Respondent's Exhibit 29), is not substantiated by the record. MORGAN FURNITURE COMPANY 963 seniority. Furthermore, Lynch testified that "after a reasonable time and at our discretion there is some possibility we might consider rehiring" McClellen. While the record indicates that several spray operators were hired by the Respondent during the expansion required to produce television cabinets during June and August 1950, there is no evidence that there has been any opening in the Respondent's plant for a spray operator since that time. Under all the circumstances, I find no merit in the contention of the General Counsel that the Respondent failed to reinstate McClellen because of his UIU activities.' Ac- cordingly, I find that the General Counsel has failed to prove by a preponder- ance of the evidence that the Respondent's discharge of McClellen and its re- fusal thereafter to rehire or reinstate him constituted a violation of Section 8 (a) (1) and (3) of the Act " 4. The layoffs of Annie Ada Foxx and Maude Burleson a. Facts Annie Ada Foxx and Maude Burleson were employed by Morgan Manufac- turing Company in 1943 as drawer assemblers in the assembly department. When the Respondent took over Morgan Manufacturing Company's plant in 1946, they-like the other employees-were retained by the Respondent. From July 1947 until the time of their final layoffs, Foxx and Burleson were in wage code 2,4 working on conventional furniture. The seniority roster of the as- sembly department as of December 4, 1949, lists Foxx and Burleson as the only drawer guiders. Prior to the layoffs here in question, they were laid off several times during 1949, and these layoffs varied from 10 days to approxi- mately 6 weeks in duration. In June 1949 the UIU processed grievances with respect to their layoffs. The grievances were successful, and they were rein- stated with back pay. Their work was never criticized.38 At some time not clearly stated in the record, but obviously long before their final layoffs, their work was complimented by their then foreman. Foxx's pay rose during this period from 40 cents to 97 cents per hour, including an individual increase of 5 cents per hour given her about 2 years before her final layoff. Burleson and Foxx were both members of the UIU, and had authorized the Respondent to check off their dues to that organization. Burleson had been a trustee of the UIU local, but stated that she "never was active." She was not a trustee at the time of her layoff. At one time when Ballard was a rank-and- file employee and a member of the UIU, Burleson nominated Ballard as shop steward. This was done in Ballard's presence. Foxx testified that she had attended only one UIU meeting. As has been previously mentioned, production of the new Homemaker and Voguemaker suites commenced early in December 1949. According to Morgan, this was expected to reduce the number of employees on the assembly line to approximately 18 people. Actually, the assembly department was cut from 36 When asked why Ray had been rehired, Lynch explained that Ray "was laid off with- out any argument about it," and had admitted his infraction. Even had the complaint alleged that the failure to rehire McClellen constituted a violation of Section 8 (a) (4) of the Act-which it does not-I do not consider this testimony sufficient to support a finding that the Respondent's failure to rehire McClellen was due to the fact that charges had been brought against the Respondent for discharging McClellen. 39 The Colonial Life Insurance Company of America, 76 NLRB 653, 664-5. McClellen's known officeship in the UIU did not immunize him against discipline. Chance Vaught Aircraft Division of United Aircraft Corporation, 85 NLRB 183 37 The Respondent has 9 wage codes, of which wage code 1 is the lowest. Burleson's testimony that she thought her wage code was 3 or 4 is rejected. 81 On October 3, 1948, Burleson was given a written reprimand for leaving work early. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 36 employees as of December 4, 1949, to 27 employees at the end of January 1950.89 The reduction continued even after the Board election of January 31, 1950, for by the end of March 1950, there were only 24 employees in the assembly department90 Meanwhile, the number of employees in the entire plant was un- dergoing a similar shrinkage. From 111 employees on December 11, 1949, it dropped to 93 as of January 29, 1950, and to 85 as of April 30, 1950. It is clear, and I find, that this reduction was due to economic necessity. The reduction of the assembly department caused the layoffs of 7 employees (including Foxx and Burleson) within the first 8 days of December 1949. Two were recalled later that month ; the others were never recalled. On December 7, 1949, Frank Ballard, foreman of the assembly department, handed Foxx and Burleson separation slips indicating that they were laid of for "lack of work." Foxx asked Ballard what it meant and Ballard replied that "it was for a couple of weeks until they get some stock in in the machine room and we would be back." Burleson soon applied to Ballard for recall, and was told by Ballard that he would try to recall her by December 18. Burleson reapplied to Ballard after December 18, and was referred by Ballard to Lynch. When Burleson asked Lynch about her job, Lynch replied that "there was somebody on it and he couldn't give me any work." 'Z Altogether, Burleson visited the plant 4 or 5 times in vain efforts to be recalled to work. Two months after her layoff Foxx returned to the Respondent's plant to seek reinstatement. The receptionist would not permit her to see any of the Respondent's officials. After the layoffs of Foxx and Burleson, the UIU filed a grievance on their behalf. However, they were never rehired. Foxx and Burleson both voted in the Board election of January 31, 1950, and their votes were challenged. Because challenges were not determinative of the results of the election, they were not ruled upon. b. Contentions and conclusions The General Counsel contends that Foxx and Burleson were chosen for lay- off because of their membership in the UIU, and that employees with less seniority-particularly Clara Quackenbush-were retained when Foxx and Burleson were laid off, in violation of the contract's provisions regarding senior- ity. Conversely, the Respondent claims that a reduction in the number of employees in the assembly department was determined upon when the Respond- ent changed to the manufacture of less expensive suites ; that the determination of which individuals to lay off in the department was left entirely to the fore- man, Ballard ; that Ballard did not know to what union, if any, Foxx and Burle- son belonged ; and that the inclusion of Burleson and Foxx among the employees laid off was strictly in accordance with the seniority provisions of the contract. 29 Appendices A, B, and F show 10 assembly department employees laid off in December 1949 and January 1950. Two of these, Morgan and Quackenbush, were recalled during this period. In addition, Morris was transferred from the assembly department in Decem- ber 1949, as discussed hereafter. Thus the net loss of the assembly department during the period in question was 9 employees. 40 Appendix F shows three assembly department employees laid off or discharged during March 1950. 41 There is some conflict in the record as to whether or not the entire assembly depart- ment was closed down for a few days on December 7, 1949. I find that no such closedown took place. 42 This finding is based upon the testimony of Burleson. Lynch testified that he did not recall Burleson's request for reinstatement. He did not, however, deny that such a request had been made. MORGAN FURNITURE COMPANY 965 At the outset, it is necessary to determine whether either Foxx or Burleson was among the many UIU members who had resigned from the UIU during October, November, and December, 1949, and notified the Respondent to cancel their UIU dues checkoffs. The fact that Ballard knew of their UIU affiliation prior to his becoming a foreman is unimportant, as at that time practically all of the Respondent's employees were UIU members. The Respondent was well aware of the defection of a large number of UIU members in the fall of 1949, for it had received numerous cancellations of UIU dues checkoffs. On this sub- ject, Burleson testified that she had never resigned from the UIU, and had never revoked her dues checkoff. Form first testified that she had resigned from the UIU in 1950, after her layoff ; then that she had resigned from the UIU before her layoff ; and finally that she had never resigned from the UIU48 Paul Ed- wards, who had been shop steward in the UIU, did not list Burleson as a member of the UIU, but when asked whether Foxx had been a member of the UIU answered : "Yes, sir, I think she was, the best I remember." Ballard, their foreman, testified that at the time he laid them off he did not know to what union, if any, they belonged. Garrison, who was president of the UIU local at the time in question, testified that all the alleged discriminatorily discharged employees were UIU members at the time they were laid off or discharged. However, Garrison read into the record a list of those employees who were still members in good standing of the UIU as of December 31, 1949, and this list did riot contain the name of either Foxx or Burleson. Moreover, the Respondent introduced into evidence a list of employees whose UIU dues were being checked off on the December 1949 payroll, and this list likewise did not contain the name of either Burleson or Foxx. In my opinion, it is unlikely that both the Respondent's records and the UIU's records could have been mistaken. It is much more likely, and I find, that the records of the UIU and the Respondent were more accurate than the memories of the various witnesses. Accordingly, I find that both Foxx and Burleson had resigned from the UIU prior to Decem- ber 31, 1949, and had notified the Respondent to discontinue their dues checkoffs to the UIU prior to their layoffs on December 7, 1949.44 As Foxx and Burleson had notified the Respondent to revoke their dues check- off authorizations, the Respondent was led to believe that they were among the many employees who had deserted the UIU during the fall of 1949. Thus, the Respondent had no knowledge that either Foxx or Burleson was a member of the i'IU on December 7, 1949. On the contrary, it had every reason to believe that they had withdrawn their adherence to the UIU. An essential element of dis- crimination-knowledge by the Respondent that these employees were members of the UIU-has not been proven. Accordingly, I find that the General Counsel has not established that the layoffs of Foxx and Burleson on December 7, 1949, were discriminatory." u The confusion in Foxx's testimony may have been due to a faulty memory, or it may have been due to the fact that Foxx is hard of hearing and the acoustics in the hearing room were poor. " The Respondent's list of employees whose authorizations for UIU dues checkoff were outstanding was prepared for the first payroll in the month of December, namely that of December 4, 1949 Moreover, I find according to article I, sec. 3 of the contract between the Respondent and the UIU , revocations of authorization for dues checkoffs require 30 days' written notice by the employee to the Respondent . Accordingly , Foxx and Burleson must have sent in their revocations to the Respondent prior to November 5, 1949. I so find. "Tampa Times Company v N. L. R B , 193 F. 2d 582 (C. A. 5). In view of my finding that the Respondent believed that Foxx and Burleson had resigned from the UIU prior to their layoffs, I deem it unnecessary to determine whether or not their layoffs violated the seniority provisions of the contract then in effect between the Respondent and the UIU. 250983-vol. 102-53-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I turn now to the question of whether or not the Respondent has failed or refused to reinstate Foxx and Burleson because of their membership in or activi- ties on behalf of the UIU. What were the Respondent's intentions with respect to the future reemployment of Foxx and Burleson at the time of their layoffs on December 7, 1949? Lynch testified without contradiction that some of the employees laid off during December 1949 and January 1950 were given letters informing them that the layoffs were permanent, and that the Respondent gave such letters only to those it did not intend to rehire4° However, no such letters were given to either Foxx or Burleson. Lynch testified credibly that, at the time Foxx and Burleson were laid off, the Respondent did not know whether it would need them in the future. He also testified that Foxx and Burleson had performed their work in a satisfactory manner and that the Respondent had no objection to rehiring them "if and when we have work of the type they can do." It is there- fore found that the Respondent had not determined not to rehire Foxx and Burle- son at the time of their layoffs. As has been mentioned previously, the UIU filed the instant charges against the Respondent on February 2, 1950. These charges contain the names of Foxx- and Burleson, along with such prominent proponents of the UIU as Garrison. It is reasonable to assume, and I find, that on and after February 2, 1950, the Respondent had reason to believe that Foxx and Burleson were in some way connected with the UIU. The question then remains whether or not this knowl- edge motivated the Respondent to refuse to reinstate or rehire Foxx or Burleson. After February 2, 1950, when the Respondent first learned of the UIU connec- tions of Foxx and Burleson, the only laid-off employee recalled in the assembly department was Margaret Morgan, a drawer clamp operator. She was laid off several times during 1949, including a layoff from December 7 to 19 of that year. She was laid off again on March 17, 1950. Thereafter, the Carpenters filed a grievance on her behalf, and she was given a tryout as a drawer clamp operator on a new type clamp used on the new suites of furniture. For 6 days a test was conducted. The results of this test satisfied the Respondent that Morgan could not do the work as well as the man whom she had replaced during the test. Accordingly, she left the Respondent's employ and never returned. The only other woman who has ever been employed in the assembly department since February 2, 1950, was Clara Quackenbush, who was transferred out of the department into clerical work on August 1, 1950. Since that date, no women have been employed in the assembly department. During the expansion caused by the manufacture of television cabinets in the summer and fall of 1950, the assembly department reached a peak of between 65 and 70 employees ; yet no women were added. At the time of the hearing, the number of employees in the assembly department had fallen to between 8 and 10. Ball testified that no women were used in the manufacture of television cabinets. Ballard further testified, with regard to furniture assembly, women "just can't do the work that a man can do." This is further explained by the fact that the television cabinets weighed from 120 to 150 pounds each. Insofar as women were concerned, the picture in the remainder of the Respondent's plant paralleled that in the assembly department. On Decem- ber 11, 1949, there were 15 women in the Respondent's employ. Yet at no time after the end of January 1950, when the Board election was held, has the Respondent employed more than 11 women in its entire plant. A list of em- ployees hired during June through October 1950, introduced into evidence, con- "The record shows that such letters were sent to Reid, Garrison , Morris, and Floyd Parton, none of whom was ever rehired by the Respondent . Parton was later hired by Morgan Manufacturing Company. MORGAN FURNITURE COMPANY 967 tains approximately 150 names . Few, if any, appear to be feminine. Under all the circumstances , I find that at no time since February 2, 1950, has there been any job available for which either Foxx or Burleson was qualified. Ac- cordingly, I find that the General Counsel has failed to establish that the Respondent refused to rehire Foxx and Burleson because of their UIU activities. 5. The UIU officers generally There are several factors which run commonly through the discharges of Morris, Reid, and Garrison, which will be considered first before discussing the individual circumstances of their discharges. a. Superseniwnty of the UIU officers As to Morris , Reid, and Garrison , the Respondent argues that they were officers of the UIU local , hence entitled to "superseniority" under the contract between the Respondent and the UIU ; that when the contract expired on Decem- ber 31, 1949, their seniority reverted to "normal ," and that their "normal" sen- iority was such that they were reached for layoff almost immediately after the contract's expiration . The pertinent portion of the contract read as follows: All Union officers and shop stewards shall be placed at the top of the seniority list of their departments . This list to be used only for lay-off purposes . At the termination of his term as officer or shop steward, he shall automatically return to his regular seniority standing. Who were the officers and shop stewards of the UIU local as of December 31, 1949? The only list of UIU local officers supplied by the UIU to the Respond- ent in evidence was submitted to the Respondent sometime in September, October, or November, 1949. This list contains the names of the following officers : Mitchell W. Garrison, President Stokes McClellen, Vice President E. Elmore Hall, Treasurer Ernest T. Reid , Secretary-Treasurer Wiley W. Morris, Recording Secretary Paul Edwards, Sergeant-at-arms Shop stewards : Phil Waldrop Herbert Anders Mel Anders Johnie Towe Paul Edwards Elis Chambers Mart Rodgers [Rogers] As has been previously mentioned , by December 31, 1949, McClellen was no longer an employee of the Respondent and Waldrop and Rogers had resigned from the UIU . As will appear below, Garrison and Morris were UIU officers on December 31, 1949; Reid was not but the Respondent nevertheless continued to consider him as such . Of the remaining officers and shop stewards on this list, Herb Anders, Mel Anders , and Chambers resigned from the UIU prior to December 31, 1949," and Hall and Towe (according to Garrison's undisputed testimony ) were merely rank-and-file members , not officers or shop stewards, on that date. Accordingly, it is found that Morris , Garrison, Reid , and Edwards 41 See Appendix A. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were the only employees known or believed to be officers or shop stewards of the local UIU on December 31, 1949. Three of these four were discharged within a few days after the contract between the Respondent and the UIU expired. Morris, Reid, and Garrison were not laid off during December 1949-the first month of the economic layoffs. But it does not necessarily follow that they would have been laid off at that time, absent their "superseniority." Their "normal" seniority during this month was governed by other contract provisions, the pertinent parts of which read : ARTICLE III. PROMOTIONS, LAY-OFFS AND DISCHARGES Section 5. In case of a lay-off, employees will be laid off on the basis of seniority in the job and the department. Seniority in the job shall prevail except where an employee with long departmental seniority can be trans- ferred to a job of another classification for which he has the qualifications and specific experience in this plant. * * * * * * * Section 6. In case a job is permanently discontinued, the employees affected shall have the privilege to take any job for which they are qualified. Job seniority will govern such instances. * ARTICLE VII. SENIORITY. Section 1. Job seniority is defined as the length of time an employee has been on the job to which he is assigned as an operator. It shall not include the time required to learn the job, which shall not exceed two months' period. * * * * * * Section 2. Department seniority is the continuous length of employment in a department starting from the hiring date. It will also include any time accrued in work in other departments. * * * * * * * Section 3. In case of permanent transfer of an employee from one depart- ment to another, he will, after rendering satisfactory service in the depart- ment to which he is transferred for a period of two months, be given his old departmental seniority, plus the two months he had accumulated in the new department. This shall not apply to an employee temporarily transferred. * * * * * * * Section 6. When recalling an employee the demand for a particular job will be filled by the employee who has had the greatest job seniority, pro- vided, however, that due consideration is given to employees with high departmental seniority. An employee upon recall shall be notified by the Company by mail at the address left by him with the Company. * * * * * * * Applying these "regular" seniority rules, it appears that at the beginning of December 1949 Morris' and Garrison's "job" seniority cannot be evaluated relatively, as each was the only employee performing his particular job." 4" Although Garrison appears on the seniority roster as "not classified," he was a case backer at that time. 0 MORGAN FURNITURE COMPANY 969 Reid's "yob" seniority as a stock boy was second of two. Of the 36 employees in the assembly department at the beginning of December 1949, the relative "plant" seniority " of Morris, Reid, and Garrison was respectively 13th, 21st, and 32nd m As of December 31, 1949, when only 30 employees remained in the department, Reid and Garrison stood respectively 17th and 27th in relative "plant" seniority. There is confusion in the record as to whether or not the Respondent followed the contract's seniority provisions during the layoffs of December 1949, or followed the "regular" seniority after the contract's expiration. A study of the record convinces me that, so far as the assembly department was concerned, the principal factor taken into consideration was the ability of the particular employee involved to perform more than one job." The Respondent's witnesses testified that, because of the Respondent's precarious financial condition at this time and the change to new furniture, such a method of selecting employees for layoff was necessary. This being so, it is suspicious that Morris and Garrison were chosen for layoff, in view of their relatively high wage codes and their varied experience in the plant. Undoubtedly, they were each capable of performing more than one job. b. Method of selection for layoff In making the reduction in force during December 1949 and January 1950 and thereafter, the general rule applied by the Respondent was that the selection of the individuals to be laid off was left entirely in the hands of the foreman. Yet Lynch, Ball, and Morgan all testified that in the late fall or early winter of 1949 they had several discussions of the "special problem" posed by the "super- seniority" of Morris, Reid, and Garrison. Furthermore, Ball knew on Janu- ary 4 that Garrison would be laid off that day, as shown by his remark to Garri- son described below. In his testimony, Ball explained this remark by pointing out that he had previously seen Ballard's "list." Under all the circumstances, it is found that, contrary to the usual procedure in layoffs, the foremen in- volved-Ballard and Lynch-consulted with Morgan and Ball regarding the discharges of Morris, Reid, and Garrison prior to actually making the discharges. Thus, the discharges were made not on the choice of the individual foremen but upon orders of higher officers.67 c. Lack of intent to rehire As mentioned previously in the discussion of the layoffs of Foxx and Burleson, the Respondent gave letters only to those laid-off employees it did not intend to rehire. As will be seen, such letters, expressing the permanent nature of the layoffs, were given to Morris, Reid, and Garrison. Thus, it is clear that, at the time of these layoffs, the Respondent had decided never to recall them. In effect, I As these 3 employees had all worked in the assembly department more than the required 2 months, their "departmental" seniority was equivalent to their "plant" seniority. Although the contract is silent on the subject, the parties counted employment with Morgan Manufacturing Company in computing "plant" seniority. 60 The statement in the General Counsel 's brief that Morris stood "fifth from the top of the list in his department" Is not supported by the record ; nor is the Respondent's con- tention that Garrison had the least seniority in the department. See Appendix C. m In January 1950 Parton was the only patch and repair man laid off. Yet of the six remaining employees performing this job, he stood second in "job" seniority and first to "plant" seniority. Indeed, as to the latter, he was the oldest employee in the department. See Appendix C. So far as his layoff is concerned , it is clear that "seniority" (as defined in the expired contract) was not followed. " The contrary testimony of Ballard is not credited. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then, these were discharges which effectively severed the employee-employer relationship rather than mere temporary layoffs ' d. Failure to rehire As has been mentioned previously, the manufacture of television cabinets which commenced in June 1950 resulted in a large increase in the Respondent's working force. According to Ballard, new employees were recruited "every way we could." Morgan testified that the Respondent advertised for skilled employees at this time. Ballard testified that both skilled laborers and unskilled trainees were hired and that 25 trainees were added to the assembly depart- ment during June, July, and August, 1950. He further testified that there was a large turnover among the trainees and many vacancies occurred. Likewise, Lynch testified that the Respondent attempted to recruit skilled workers in 1950, and also hired many trainees. It is undisputed that the assembly department reached a peak of approximately 65 to 70 employees during this expansion. A list of employees hired during this period indicates that, beginning with June 19, 1950, many employees were hired in the assembly department to per- form jobs for which Morris, Reid, and Garrison had the necessary skill. Despite the fact that Morris, Reid, and Garrison had not been laid off more than 6 months, and that it was the custom of the Respondent to call back laid-off employees within 6 months before hiring new employees,' no attempt was made to offer any of them a position. Even when the UIU letter of June 22, 1950, requested Morris' and Garrison's reinstatement, the Respondent ignored it. Ballard testified on this point as follows : Q. (By Mr. McCormick) : Why did you hire all of these trainees when you had people who had been working for you for years out of work? A. I don't know that I knew he [Morris] was out of work, I don't know but what may be he was working. Q. Did you try to find out? A. I guess I didn't. Trial Examiner ASHER : What kind of work did the trainees do when they first started working in your department? The WITNESS : What kind of work did they do? Trial Examiner ASHER : They worked in Television? The WITNESS : Yes, sir, altogether. Trial Examiner ASHER : What did they do in television? The WITNESS : Well, we had various jobs. Trial Examiner AsHER: Describe a few of them? The WITNESS : One of the door jobs, film wood door. Trial Examiner ASHER: I don't get that? The WITNESS : I guess it is something new ; that was put on the door. Trial Examiner ASHER: What other kinds of jobs? "Eva-Ray Dress Manufacturing Company, Inc., at al., 88 NLRB 361, enforced 191 , F. 2d 850 (C. A 5). 64 Article IV, section 4 of the contract between the Respondent and the Carpenters, which was in effect in June 1950, provided : "In the event of a curtailment of the working force, if the employee is qualified for the job available, the last employee laid off shall be the first employee recalled An employee upon recall shall be notified by the Company by mail at the last address left by the employee with the Company prior to layoff .. . 11 Section 8 preserves the seniority of laid-off employees for 6 months. MORGAN FURNITURE COMPANY 971 The WITNESS : Various frames for television, different pieces that went in the television cabinet. Trial Examiner ASHER : What else? The WITNESS : Building base sub-assembly and stuff like that. Trial Examiner ASHER: Any others? The WITNESS : I couldn't recall right off. Trial Examiner ASHER: Do you consider Wiley Morris had the qualifica- tions to do the door job, and the film woods doors? The WITNESS : No, sir, I did not. Trial Examiner ASHER: Do you consider he could have done the frames for the television? The WITNESS: No, sir, his eyesight would not have done the inspection that had to be done on this stuff. Trail Examiner AsHER : You consider he was not qualified to do the base sub-assembly? The WITNESS : No, sir. Trial Examiner ASHER : Do you consider Ernest Reid was not qualified to do the frame work? The WITNESS : No, sir. Trial Examiner ASHER: Did you consider he was qualified to make the base sub-assemblies? The WITNESS : No, Sir. Trial Examiner ASHER: Why, in your opinion, was Ernest Reid not quali- fied to do that work when young people that were in school could do it ; what was it about Reid that made him unqualified? The WITNESS : I had never seen any work he had done. That would be all I could say about it. Trial Examiner ASHER : Had you ever seen the work these trainees had done before you hired them for it? The WITNESS : No, sir, I had not. Trial Examiner ASHER: Do you consider Mitchell Garrison qualified to do the frames? The WITNESS : I didn't consider those, I don't know why, maybe I just overlooked the whole works. In view of the UIU's letter to the Respondent of June 22, 1950, I do not credit the above testimony of Ballard that he was in doubt as to Morris' availability or that he might have "just overlooked the whole works." Nor do I credit the testimony of the Respondent's witnesses that these three employees were not qualified for any job in the manufacture of television cabinets. On the contrary, I find that Morris, Reid, and Garrison were not recalled in June 1950 because at the time of their layoffs the Respondent had decided not to recall them in the future. e. Conclusions as to the UIU officers generally As has been previously found, sometime in October, November, or December, 1949, Ball determined to use the pending reduction in force to rid the Respondent of the UIU officers. In view of Morgan's antipathy to the UIU, as previously found, it is reasonable to assume, and I find, that Morgan and other officials of the Respondent subject to Morgan's orders 66 concurred in this determination. The logical time to carry out this plan was during the month of January 1950. There were several reasons for this timing: (1) The Respondent was then reduc- 55 Lynch reported directly to Morgan and was on the same management level as Ball. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing its working force for economic reasons, and the layoffs could therefore be more easily justified on the ground of financial necessity; (2) the contract be- tween the UIU and the Respondent had then expired, leaving the UIU officers stripped of the "superseniority" which that contract provided; and (3) perhaps the most important of all, a Board election was pending at the end of January 1950 in which the Respondent wished to see the Carpenters victorious. It is clear, and I find, that this decision to discharge the UIU officers during January 1930 was reached before December 31, 1949. In view of the seniority and wide experience of Morris and Garrison in the plant ; the consultation between the Respondent's officials prior to the discharge of Morris, Reid, and Garrison ; the fact that they were discharged instead of laid off; and the failure of the Respondent to recall them when jobs they were qualified to fill became available, I am convinced and find that they were discharged pursuant to a preconceived plan to rid the plant of all UIU officers 68 I turn now to a consideration of the individual discharges of Morris, Reid, and Garrison. 6. The transfer and discharge of Wiley Morris a. Facts Wiley Morris began to work for Morgan Manufacturing Company in 1943 making ammunition boxes. After approximately a year, he was transferred to the assembly department making dust panels. He continued at this job for about 2 years, during which Morgan Manufacturing Company's plant was taken over by the Respondent and Morris was retained in the Respondent's employ. He was next assigned to utility work, replacing damaged and split end panels and tops. On this job, he was in wage code 6? He continued this work for approximately 3 years. At about the end of 1948, he was assigned to inserting glue blocks inside the corners of cases of the Spacemaker suite. In addition, he spent some time sanding, helping to assemble drawer guides, and assembling chairs and beds. The Respondent's seniority roster as of December 4, 1949, lists Morris as the only case subassembler, with "job" seniority from July 1, 1946, and "plant" seniority from December 3, 1943. Ballard, foreman of the assembly department, testified that Morris' work was "fine" and "just good." The record indicates, and I find, that he was a thoroughly satisfactory employee. Morris was recording secretary of the UIU local. His name appears as such on the list of UIU officers submitted by the UIU to the Respondent. He was active in processing the UIU's grievance which resulted from McClellen's dis- charge. At all material times, the Respondent was aware that Morris was an officer of the UIU. Early in December 1949, Morris was transferred from the assembly department to the maintenance department as a boilerman. The record presents a conflict as to the circumstances surrounding this transfer. Morris testified that Bal- lard came to him and said that Bill Cody (a fireman in the Respondent's maintenance department) had put in some steam heaters and asked Morris if he would go out to the boilerroom "and work for a period of time until Bill got through these heaters." Morris asked Ballard why, and Ballard replied, "Well, I thought you were the only one I had that would go out here. You 11 The fact that UIU officer , Edwards, was neither laid off nor discharged has been taken into consideration, but is found insufficient standing alone to require a contrary finding. N. L. R. B. v. W. C. Nobors Company, 196 F. 2d 272 (C. A. 5), and cases there cited. Moreover, Ball testified that the only UIU officers holding "superseniority" as of December 31, 1949, to his knowledge, were Morris, Reid, and Garrison 1 According to the testimony of Lynch, Morris was reduced from wage code 6 to wage code 5 in 1948 "for some reason, I don't know why." MORGAN FURNITURE COMPANY 973 can come back in any time you get ready ; if you don't like it out there, you can come back; if you don't get along out there with them boys you can come back when you get ready." Ballard testified that he told Morris "if his job opened up he could come back , if he wanted back on his Spacemaker I would give him his job back , far as I was concerned." Morris impressed me as a sincere and forthright witness, and his version of this conversation is therefore adopted. Accordingly, Morris was transferred to the maintenance department of which Lynch was acting foreman . Morris' duties consisted of feeding coal to the automatic stoker and accompanying Cody throughout the plant , assisting him in cutting pipe to install heaters. Morris worked in the boilerroom 4 or 5 weeks. On January 3, 1950, he was laid off by Lynch , who gave him a layoff slip showing "lack of work" as the reason for the layoff, and a letter signed by Lynch which read as follows : We regret to advise that as a result of business conditions and a necessary change which has been made in the product of this Company, we are required further to reduce our working staff and to retain in each position only the most experienced and highly skilled personnel available. For this reason, your services with the Company will be terminated as of January 2nd, 1950. Although this action must be of a permanent nature, I can assure you that it has been taken with the utmost reluctance on the part of the Company. We have your name on file and should conditions change, we shall be pleased to consider you for future employment. When Lynch told Morris of his layoff, Morris replied: "Lay me off with my seniority and my flexibility?" Lynch answered : "Yes, and I am going to lay off quite a number of men." On the day after Morris' layoff, Garrison attempted to grieve the matter, discussing it with Ball. Garrison testified that he was in some doubt as to the exact procedure to be followed, since the contract between the Respondent and the UIU had expired a few days before. On the same day, January 4, Morris returned to the plant and told Ballard that he had been laid off from the main- tenance department. Ballard replied : "I don't know what he means by that, but I will go down there [the office] and see." Ballard left, and upon his return said to Morris : "Wiley, I can't get any damn sense in him. You go down and talk yourself ; I can't get nothing out of them." When Morris inquired to whom Ballard referred, Ballard replied that he was speaking of Ball and Lynch." Morris then went to see Lynch, who asked : " Abat are you doing back here today, you were laid off." Morris replied that his foreman had merely lent him to the maintenance department and that he was supposed to return to the assembly department, that he had seniority and was "flexible" and that he thought something could be found for him to do. Lynch replied that that did not make any difference. On January 5, 1950, Lynch gave Morris a letter of recommendation which read as follows : To WHOM IT MAY CONCERN : Wiley W. Morris was employed by us from July 1, 1946 to January 3, 1950. He served in various capacities in our Furniture Assembly Depart- ment. Unfortunately his regular job was recently discontinued due to a change in the products we are now making. 6e The finding with respect to this conversation is based upon the credited testimony of Morris. Ballard testified that he could not recall it. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have always found Mr. Morris to be an honest and a steady, competent worker on whatever job he was assigned to do. I will be more than glad to talk to anyone with whom he is seeking employment and give whatever further information I can that will be helpful. About 2 weeks later, Lynch sent for Morris and asked him to return the letter of recommendation. Lynch stated that a lawyer had contacted him to get information concerning Morris, and had informed him that Morris had filed unfair labor practice charges against the Respondent. Morris replied that he had not talked to any lawyer, nor had he filed any unfair labor practice charges 68 Morris, however refused to return the letter. In his testimony, Lynch explained that Morris was attempting to secure employment at a hospital, that he (Lynch) knew the officer in charge of this hospital, and that he wrote the letter of recom- mendation specifically to assist Morris to get that particular position, but "in a few days, I found instead of using it for getting a job he had used it in this unfair labor practice charge." Morris returned to the Respondent's plant approximately 12 or 15 times seeking reinstatement, the last time being early in 1951. He was listed among those for whom reinstatement was demanded in the UIU's letter to the Respondent of June 22,1950. He has never been rehired. b. Contentions and conclusions I first consider the Respondent's motives for transferring Morris to the boiler- room in December 1949. The Respondent contends that Morris' job had been discontinued, that he was not qualified to perform any other job in the assembly department, but because of his superseniority under the contract it was necessary to retain him as an employee until the contract expired, and that the only available position which he was capable of performing was one then open in the maintenance department as boilerman. Morris' job at the time in question was inserting glue blocks inside the corners of cases for the Spacemaker suite, using a high frequency unit to set the glue. He was the only employee performing this duty. The General Counsel asserts in his brief that "it is questionable" if this job was discontinued. However, Morgan, Morris, Ballard, Ball, and Lynch all testified as to this discontinuance." Indeed, Morgan and Lynch explained that the modern type of construction used in the Spacemaker produced a very strong case, that tests were undertaken around Thanksgiving 1949 to determine whether or not corner glue blocks were necessary to strengthen this type of case, and that the tests proved that the cases made by modern construction were stronger-even without the glue blocks-than the conventional type of construc- tion. It was consequently determined to eliminate glue blocks in the cases of the Spacemaker suite. Accordingly, I find that Morris' job-inserting corner glue blocks in the cases of the Spacemaker suite-was discontinued early in December 1949. I further find that thereafter the Respondent continued to use glue blocks in the construction of Spacemaker and Voguemaker drawers.81 At the time of his transfer from the assembly to the maintenance department, Morris stood 13th among the 36 employees of the assembly department, so far as departmental seniority was concerned. With regard to "job" seniority, Morris was the only employee classified as "case subassembler" on the seniority roster 19 In this connection , it should be noted that the instant unfair labor practice charges were not filed until February 2, 1954. w The contrary testimony of employee Paul Edwards is rejected. 81 This finding as to drawers is based upon Lynch's testimony and examination of certain charts and pamphlets introduced into evidence by the Respondent. MORGAN FURNITURE COMPANY 975 of the assembly department as of December 4,1949. Ball testified that, compared to the people remaining in the department, Morris was not qualified for any other job in the department at the time he was transferred to the boilerroom. Ballard testified to the same effect. In view of Morris' relatively high wage code and his varied experience over many years in the Respondent's plant and the plant of its predecessor, I am not persuaded that Morris was not qualified for any of the jobs held by the other 35 employees in the assembly department. Considering the Respondent's desire to retain those employees like Morris who could perform a variety of jobs and to dispense with those who could only do one job, I conclude that it would have been more in keeping with the Respondent's policy had Morris been retained, even if that meant the layoff of some other employee possessing but a single skill. The transfer to the boilerroom was described to Morris in terms of a loan with assurances that he could come back when he was ready, coupled with an appeal that Cody needed help. But not disclosed to Morris was the fact that the job in the boilerroom was merely a "makeshift" intended solely to find him a temporary place until his "superseniority" ran out. Thus, Ballard testified that Morris "had superseniority and we had to place him somewhere." According to Ballard, he (Ballard) asked one of the Respondent's officials "where we could find him a job" and was told that there was an "opening" in the boilerroom and "that they could put him out there to haul coal." There- after, Ballard testified, "we placed him where we had a job we thought he could do." Similarly, Lynch testified that he "found [Morris] a job hauling coal to the boilers . . . as long as his superseniority continued. After that time, why he was laid off." In falsely leading Morris to believe that he was merely on loan, while intending to discharge him later instead of returning him to the assembly department, the Respondent evidenced bad faith toward Morris. As a virtual extra in the boilerroom he was much more subject to layoff than he would have been if he had remained in the assembly department. In reality, the transfer was not a loan but a temporary device to maneuver Morris into a vulnerable position before the reduction got fully under way and his "super- seniority" had been stripped from him .62 I therefore find that Morris was transferred from the assembly department as part of the plan to rid the Respondent of the UIU officers during the period between the end of the contract and the Board election." Having effected the transfer of Morris to the maintenance department, the Respondent soon carried out the remainder of its plan by discharging him on January 3, 1950. Of about 10 maintenance department employees, Morris was the only one laid off or discharged at that time. On the same day on which Morris was laid off, Lynch made a notation in Morris' personnel file in his own handwriting which read as follows : This man was laid off because the job he was doing was discontinued. In the new 32-3500 Suites there is no glue blocking so for a dew days we have had Wiley firing the boiler as a fill-in man. Now that the firing is no longer necessary there is no job here for him. Consequently we laid him off as of January 2nd. on a permanent basis. 157 Compare a similar set of facts in Empire Pencil Company, Division of Has8enfeld Bros. Inc., 86 NLRB 1187, 1191-93, enforced 187 F. 2d 334 (C. A. 6). a' I do not find that this discriminatory transfer of Morris , In itself, constituted a viola- tion of Section 8 (a) (1) or ( 3,) of the Act, as it was not alleged as such in the complaint. See footnote 19 of Empire Pencil Company, supra, and compare Continental Oil Co. v. N. L. R. B., 113 F. 2d 473 (C. A. 10), at page 484. (This case was remanded, 313 U. S. 212. The court of appeals later entered a supplemental decree enforcing the Board's order by consent.) 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the layoff of Morris, Lynch testified as follows : Q. (By Mr. Adams) : What about Mr. Wiley Morris, could you give us his history? I mean-we have his employment history-I mean how he hap- pened to be laid off and why he was not called back? A. Wiley Morris, I believe it has been brought here before, has a physical deformity about his eyes, that is something he can't help and it is unfortu- nate, but in the assembly department doing sub-assembly work, using a screw driver, hitting a screw head with a screw driver and hand sanding, which is close work, that is pretty difficult for him, as evidenced by Mr. Ballard relieving him of his job and not being able to find anything else for him ; Mr. Morris is perfectly willing so far as I know. And there is no other reason behind it at all except that; and when the job ended in assembly I found a job for him in the maintenance department as long as be held this superseniority, after which he was let go. [Emphasis supplied.] Lynch likewise explained the Respondent's failure to recall Morris during the expansion of June, July, and August, testifying : Q. (By Mr. Adams) : How about Wiley Morris, was he considered for one of those jobs? A. Yes, sir, Wiley Morris, as I have pointed out previously, we felt like because of eye-sight, some of the jobs requiring taking a screw driver and heading it to get production, and hand sanding and other jobs that required close eye-sight work, were probably too difficult for him in order to run the number of cabinets that we had to get through a day. Lynch further testified that the reason for laying off Morris was "mostly on the basis of his ability" and that he would be willing to rehire Morris if he had a job which he could do and no one with greater seniority had applied. Ballard also testified that Morris had poor eyesight. Ball, on the contrary, testified that he knew of no physical defect which Morris had, Morris testified credibly that he could see very well with glasses, that he has read a gauge 15 feet above the ground, and that at the time of the hearing he was attending cabinetmaking school and doing woodwork, using screwdrivers and hammers. In view of the fact that the notation which Lynch made in the files at the time he discharged Morris did not mention his poor eyesight, that Morris had been a satisfactory employee for many years, and that Lynch had given him a complimentary letter of recommendation, it is obvious that the question of Morris' alleged poor eye- sight had nothing to do with either his discharge or the Respondent's refusal to rehire him, but was an afterthought belatedly seized upon as an excuse to justify the Respondent's action. Nor am I impressed with the argument of the Respondent that it had no job open at any time after January 3, 1950, which Morris was qualified to 1111. Among those jobs filled when the Respondent commenced the manufacture of television cabinets-within 6 months after Morris' discharge-were a sweeper in the maintenance department hired on June 21, 1950, a former employee rehired as a case subassembler in the assembly department (Morris' old job classification) on June 19, 1950, and numerous trainees in the assembly depart- ment hired on and after June 22, 1950. I am unable to believe that Morris was unqualified to fill any of these positions " 04 See Union Bus Terminal of Dallas, Inc., 98 NLRB 346, footnote 3, where Board Member Murdock expresses his belief that a nondiscriminatorily motivated employer would normally prefer an old experienced employee for a vacancy rather than hire an untried outsider, absent a valid reason for preferring the outsider. MORGAN FURNITURE COMPANY 977 In view of the Respondent's scheme to rid itself of the UIU officers and the specific mention of Morris' name in connection therewith at the gathering at Williams' home ; the known activities of Morris in behalf of the UIU and his officership in that organization ; the bad faith shown by the Respondent in falsely describing his transfer to the boilerroom as a loan ; Ballard's bewilder- ment when told of Morris' "layoff"; Lynch's attempt to retract his letter 'f recommendation ; the Respondent's determination not to rehire the UIU officers ; the timing of the discharge while the Board election was pending ; the unusual consultation between officials of the Respondent before the discharge ; the Re- spondent's policy of retaining those employees who, like Morris, possessed a variety of skills and a high wage code ; Lynch's belated attempt to justify Mor- ris' discharge on the ground of his supposed poor eyesight ; the failure to recall Morris although there were ample jobs available in June 1950 which he was quali- fied to fill ; the Respondent's anti-UIU animus ; and the Respondent's ignoring of the UIU's demand for Morris' reinstatement, I find that the Respondent dis- charged Morris on January 3, 1950,` and thereafter refused to reinstate him because of his activities on behalf of the UIU. By such discriminatory conduct, the Respondent discouraged membership in the UIU and encouraged member- ship in the Carpenters, in violation of Section 8 (a) (3) of the Act, and inter- fered with, coerced, and restrained its employees in violation of Section 8 (a) (1) of the Act. 7. The discharge of Ernest Reid °8 a. Facts Ernest Reid began to work for Morgan Manufacturing Company in Decem- ber 1944 as receiving clerk in the receiving department. When the Respondent took over the plant of Morgan Manufacturing Company, Reid-like other em- ployees--was retained by the Respondent. He remained in the Respondent's receiving department so long as that department existed, and had the oldest seniority in the department. His job there was to receive paints, hardware, and related items (excluding dimension stock), to tally them when they came in, and to prepare necessary papers for the approval and payment of bills. In the spring of 1949 the receiving department was abolished, and Reid was conse- quently scheduled to be laid off. At the request of a committee of the UIU, he was not laid off at that time. Instead, Morgan found him a temporary Job installing wiring in vanity units. During the period while Reid was wiring vanity units, he was elected secre- tary-treasurer of the UIU local, and the Respondent was notified that he held this office. Sometime prior to the expiration of the UIU contract on Decem- ber 31, 1949, Reid's membership in the UIU was terminated, and he notified the Respondent to cancel his dues checkoff to that organization." Nevertheless, at 86 Despite the date January 2 , 1950, in the complaint and in Morris' letter of dismissal, he was not actually discharged until January 3, 1950. " The Respondent moved to dismiss the complaint as to Reid , on the ground that he bad failed to appear at the hearing. The motion lacks merit . As the Act is designed to vindi- cate a public policy, not private rights, the desires of individuals are not determinative of whether alleged violations shall be prosecuted . C. Pappas Company, Inc., 82 NLRB 765, 761. °T Although Garrison testified generally that all the alleged discriminatorily discharged employees involved herein were members of the UIU at the time of their discharges, he read into the record a list of UIU members in good standing as of December 31, 1949. This list does not contain Reid's name either as a rank -and-file member or as an officer. Further- more, the Respondent introduced into evidence a list of employees whose dues were checked off to the UIU as of the first payroll in December 1,949 . This list likewise does not contain Reid's name. It is therefore clear that Reid 's UIU membership was terminated prior to December 31, 1949, and that he had notified the Respondent to cancel his dues checkoff prior to that date. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all material times, the Respondent continued to consider Reid as an officer of the UIU local." Upon the completion of the job of wiring vanity units on October 3, 1949, be- cause of the "superseniority" Reid had acquired by his election to UIU office, Lynch offered him a job as watchman-fireman, and a part-time receiving job in the office, both of which Reid refused " Instead, Reid chose a job in the assembly department as stock boy. At this time, the assembly department already had 1 stock boy, Ernest Foster, who had had more than 5 years' experience on this job. Poster remained on the job, teaching it to Reid, until October 14, 1949, when he was laid off for 10 days. At the end of this period, on October 24, 1949, Ballard sent for Poster and rehired him as stock boy. From that time until Reid's discharge, both Foster and Reid acted as stock boys. On January 3, 1950, Ballard gave Reid a separation slip showing that he was laid off for "lack of work," and a letter signed by Lynch which read as follows : As you know the Company has been personally reducing its total number of employees. In do (sic) so we are keeping the men who are best qualified through knowledge and experience to fill the jobs that we have. We have a man who is better qualified than you are to do the job of stock chasing for the Cabinet Room. We therefore regret that we will have to dispense with your services permanently as of twelve noon, January 3rd, 1950. The fact that you have a record of laying out without justificable cause, having turned down two other jobs in the plant are also factors which we have considered in reaching this decision. You will find your pay check enclosed in full as well as your termination slip. Since that date, Reid has never been employed by the Respondent. On the following day, January 4, Garrison attempted to file a grievance with respect to Reid's layoff, but as the contract between the Respondent and the UIU had expired, he did not know the proper steps to take under the circumstances 40 b. Contcntions and conclusions The' Respondent contends that Reid would have been laid off when the vanity unit wiring job ran out, that solely because of his UIU office and consequent "superseniority" he was permitted to "pull" Poster's job until such time as his "superseniority" ran out, that he was unable to handle Foster's job efficiently, that it was necessary to recall Foster in order to keep the job going, that two stock boys were not needed in the assembly department, and that it was therefore justified in laying off Reid, the less efficient and junior of the two stock boys, when his "superseniority" ran out after December 31, 1949. The General Counsel, conversely, argues that Reid was laid off solely because of his UIU office and as part of the scheme to rid the Respondent of all UIU officers prior to the Board election. Q8 Ballard, Ball , and Lynch testified that they considered that Reid held "superseniority" as of December 31, 1949. The Respondent 's mistaken belief that Reid was connected with the UIU after December 31, 1949, was further bolstered by the inclusion of his name in the instant charges and in the UIU's demand of June 22, 1950, on his behalf-even though the latter was unauthorized. See footnote 70, infra. 69 These two jobs were not within the unit represented by the UIU. 70 As has been noted, the UIU wrote a letter to the Respondent on June 22, 1950, de- manding the reinstatement of the employees here concerned , including Reid. The Respond- ent points out that Reid had not authorized the UIU to write such a letter. This conten- tion has merit Inasmuch as Reid had resigned from the UIU and had revoked his dues checkoff prior to December 31, 194 9 , the record fails to show that the UIU had any authority to make such a demand on behalf of Reid. MORGAN FURNITURE COMPANY 979 It cannot be seriously denied that, when the vanity case wiring job expired in October 1949, Reid would have been laid off except for the "superseniority" which he held by virtue of his UIU office. The Respondent believed that, under the circumstances, it could not lay off Reid, but was obligated to find him a job else- where until such time as his "superseniority" ran out at the expiration of the contract on December 31, 1949. It therefore permitted Reid to select a job, and he selected that of stock boy. According to Ballard's uncontradicted testimony, the Respondent had never had more than one stock boy in the assembly depart- ment prior to October 1949. I therefore conclude and find that the job of stock boy required only one man, and that after Reid's supposed "superseniority" ran out, it became necessary to lay off either Foster or Reid. As between them, Foster had greater "job" and "plant" seniority. " He was also the more efficient. Ballard testified that he recalled Foster (on October 24) because "he was a good hand and knew the job." Ball and Lynch testified that Reid could not handle the job as stock boy, and it was therefore necessary to recall Foster (on October 24) "in order to keep the line from closing down at times due to the lack of stock." Moreover, Reid had had very little experience except in receiving. It is accordingly possible that, absent any anti-UIU animus, the Respondent might have laid off Reid on January 3, 1950. But that is not what happened. As mentioned above, at the time Reid was laid off, he was given a letter informing him that the layoff was permanent in nature. As in the case of Morris and Garrison, this indicated that the Respondent was not merely laying off Reid, but was permanently discharging him and depriving him of seniority rights which he would have been entitled to retain for an addi- tional 6 months. In an endeavor to justify its action, the Respondent contends that Reid was an unsatisfactory employee. In the Respondent's personnel files con- cerning Reid there is a pencil notation in Adams' handwriting which reads as follows : In December 1949 received and delivered to upholstery dept. material from important customer (Friedman) making no record. Customer sent in duplicate cover for chairs, resulting in serious and embarrassing situation. The event referred to in this notation took place while Reid was working in the receiving department.71 A customer had sent material to be used on his chairs. Reid delivered the material to the wrong department, and failed to make out a receiving report. Believing the material had not been received, Adams arranged to have the customer send additional material. The mistake was discovered later, causing the Respondent some embarrassment. When questioned as to whether this error was cause for discharge, Adams replied : "That is something that can be debatable." Considering this testimony and the fact that the Respondent continued Reid in its employ long after he made the error-even at a time when he held no "superseniority" 73-it is clear and I find that Reid's above-described mistake was not a motivating factor in the Respondent's decision to discharge him rather than merely to lay him off. Lynch described Reid as "extremely lazy." He further testified that Reid "had a bad record of laying out on Monday" and that he thought that Reid had been warned about that. The evidence on Reid's alleged laziness and habit of 'r' See Appendix C. 7' Although Adams testified that this took place late in 1949, it is obvious that it occurred earlier because the receiving department was abolished in the spring of 1949. 71 It will be recalled that Reid was not elected to office in the UIU local until after the receiving department was abolished. 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "laying out on Monday" is confined to Lynch's above testimony, and is couched in general language, vague, and unconvincing. No specific instances illustrat- ing these supposed faults were described and Ballard, Reid's foreman, did not testify with regard to them. It is true that "laying out" was mentioned in the separation letter as one of the reasons underlying the dismissal, and that such a habit might have affected the Respondent's choice of Reid for layoff instead of Foster. I find it difficult to believe, however, that it was more than a minor makeweight in the determination never to rehire Reid. That deter- mination, I conclude, was based primarily upon Reid's supposed office in the UIU, and was part of the scheme to rid the Respondent of all ULU officers." Beginning with June 21, 1950-within 6 months after Reid's discharge-the Respondent hired a sweeper in the maintenance department and numerous trainees in the assembly department.77 Why was Reid not offered one of these positions? Ballard explained that Reid was not recalled because there was no job in the assembly department since January 3, 1950, that he was qualified to perform. However, Lynch testified that Reid was not rehired because, after having offered him two jobs which he had turned down in 1949 prior to his layoff, the Respondent "felt . . . we had fulfilled our . . . obligation." Neither explanation carries the ring of sincerity, for the Respondent was obviously extremely anxious to obtain workers, both skilled and unskilled, in June 1950. And it is beyond belief that Reid could not have handled jobs for which inexperi- enced and untrained young men were hired. Under all the circumstances, I find that Reid was not recalled in June 1950, although qualified, because the Respond- ent had determined at the time of his layoff never to rehire him.48 It is accord- ingly found that Reid was discriminatorily discharged on January 3, 1950, and that the failure to recall him was likewise discriminatory. Thus, the Respondent engaged in interference, coercion, and restraint, and discouraged membership in the UIU and encouraged membership in the Carpenters in violation of Section 8 (a) (1) and (3) of the Act. 8. The discharge of Mitchell Garrison a. Facts Mitchell Garrison began to work for the Respondent in September or October 1946 as an inspector in the inspection department. About 6 months later he was transferred to the receiving department as a patch and repair man on dimension stock in wage code 7.74 On April 4, 1949, the receiving department was eliminated and Garrison was transferred to the assembly department as a patch and repair man on assembled furniture. On September 8, 1949, Garrison's job was changed to that of case backer. Garrison was elected vice president of the UIU local in June 1949. When Waldrop resigned as president of the UIU local in August 1949, Garrison became 74 Even where the record contains no evidence of the discharged employee's union activity, a finding of discrimination is warranted if the Respondent believed the employee was active in the Union and discharged him for this reason. Dolores, Inc, 98 NLRB 55y0 75 The receiving job in the office which Reid had previously refused was filled by the hiring of a new employee on January 12, 1950, not long after Reid's discharge. Had Reid been merely laid off instead of being discharged, I do not l elieve the Respondent could have been expected to offer him this job a second time. 79 Had Reid been laid off instead of discharged, it would not have been necessary for him to have requested rehiring within 6 months Under the Respondent's settled policy and its contract obligation, the Respondent would have recalled him automatically, even in the absence of a request. For example, Foster and Randolph were recalled without request. 77 Based on Lynch's credited testimony. Ballard's testimony that Garrison was in wage cone 2 or 3 is rejected MORGAN FURNITURE COMPANY 981 president of the local and remained in that office thereafter . He was active in handling the successful grievances filed by the UIU on behalf of Foxx and Burleson in June 1949, and the grievance which arose from the discharge of Stokes McClellen in September 1949. He was also quite active on behalf of the UIU during the campaign which preceded the Board election of January 31, 1950. In December 1949 Garrison again took part in processing the UIU's grievances with respect to the layoffs of Foxx and Burleson . Indeed, during this entire period he was the most active of the UIU adherents. As of December 31, 1949-a few days before his discharge-Garrison stood 27th in "plant" seniority among the 30 employees remaining in the assembly department . The only other employees in the department who were dis- charged or laid off during January 1950-the month before the Board election- were Reid and Floyd Parton, a patch and repair man." On January 4, 1950, during working hours, Garrison spoke to Ball regarding Morris' layoff the previous day. Ball asked Garrison what he thought Morris should do . Garrison replied that if Morris was not put back to work , he would recommend that Morris file unfair labor practice charges with the Board against the Respondent . Ball answered that Garrison also would probably get his chance to do so. At the close of work on January 4, 1950, within a few hours after the con- versation between Garrison and Ball related above, Ballard, foreman of the department , handed to Garrison a layoff slip and a letter signed by Lynch, similar to that previously given to Morris. Garrison , accompanied by Morris, then went to see Lynch about his layoff. Lynch explained that "he was keeping the more experienced hands" and promised to give Garrison a letter of recom- mendation . Approximately a week later Garrison advised Lynch by telephone that he had not yet received the promised letter of recommendation. Lynch replied that Morgan had instructed him not to give any more letters of recom- mendation , "that it might go hard against them in Board cases." Garrison's name was included among those employees whose reinstatement ,%t as demanded in the UIU 's letter to the Respondent of June 22, 1950 . During June 1950 Garrison applied "several times" to Lynch , Ballard, and Ball for reemployment. Lynch replied that he did not have any position for Garrison at the time, but when he had anything he would notify Garrison . Ball expressed the same thought . Ballard told Garrison that "he wished he could take [Gar- rison ] back but under the circumstances he could not ." Garrison reapplied for work during this period once a day for a week, in all about 10 times. He has never been rehired. b. Contentions and conclusions The General Counsel contends that seniority was not followed in the discharge of Garrison , but that he was discharged solely because he was an officer and a strong proponent of the UIU. He maintains that this discharge was effected pursuant to the Respondent's plan to rid itself of all UIU officers . The Re- spondent , on the other hand, insists that Garrison had "pulled" his "super- seniority" to displace employee William Jack West, that after his "super- seniority" expired his regular seniority was low resulting in his layoff and the recall of West, and further that he was laid off because he wasted a lot of time on the job, his attitude was poor, his production record was substandard and he tried to impair the efficiency of other employees by suggesting a slowdown in production. 78 See Appendices A, B, and C 250983-vol. 102-53-63 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of Garrison's discharge, a "confidential" memorandum was placed in the Respondent's files by Lynch. It reads as follows : Garrison was released for the following reasons : 1. In changing to the new 32-3500 suite we have need only for 3/4 of one man's time putting case backs on. This is all he has been doing. We want to use the other 1/4 of his job on other work-i. e. case fitting & clean up. We have a highly-skilled case fitter who is better suited to do the combined jobs than Garrison and so we are keeping the "case fitter" and releasing Garrison in order to take advantage of the higher skill and longer experi- ence of the case fitter. 2. Another factor taken into consideration is Garrison's habit of wasting time not only continued talking on the job but wasting a lot of the fore- man's time as well such as the instance which occurred on Jan. 3, 1950 when he held up the foreman for 15 minutes or more in a needless argument. 3. Garrison is one of the worst offenders for either showing up at his work station late and quitting work before the whistle blows. 4. We also have information which leads us to believe (even though we have not yet proved it definitely) that he asked two men to help him in a "slow-down" when work was running short in the cabinet room. 5. He has always grudgingly taken other work than his regular job when there was nothing for him to do. One time he suggested to the foremen that he sit down and wait for more cases to come down the line, rather than do other work when it was assigned to him by the foreman. With regard to the contention that Garrison "pulled" West's job by virtue of his "superseniority" and that West was later recalled shortly after Garrison's layoff, Ball, Lynch, and Ballard so testified ; Garrison denied it. From April 4 to September 8, 1949, both Garrison and West were in the assembly department, Garrison as a patch and repair man on assembled furniture , and West as a case backer. The Respondent's records indicate that West had more "plant" seniority than Garrison, that West was laid off on September 8, 1949, and that he has never been recalled. It is true that Garrison began to do case backing on September 8, 1949, the same day on which West was laid off, as contended by the Respondent. But West was never recalled, even after Garrison's layoff in January 1950. To this extent, the Respondent's records conflict with the testimony of its witnesses. The contention that Garrison was laid off in order to recall West-the man whose job he had "pulled"-is therefore without merit. In this respect, the situation with regard to Reid and Foster described above differs materially from that of Garrison and West. When the Respondent commenced to produce the Homemaker and Vogue- maker suites, it attempted to retain employees with several skills, laying off those who could only perform one job. Garrison's job at the time, case back- ing, was not discontinued after his layoff. Instead, this job was performed by a case fitter, who fitted cases part time and backed cases part time. While Ballard attempted to describe the case-fitting job as more skilled than that of case backer, he also testified that the case fitter was in wage code 7, the same wage code held by Garrison. In view of the Respondent's policy of retaining em- ployees with varied skills and the wide job experience of Garrison as inspector, patch and repair man in dimension stock, patch and repair man in assembled furniture, and case backer, it is unlikely that Garrison would have been laid off on January 4, 1950, except for the office he held in the UIU. The Respondent sought to picture Garrison as an unsatisfactory employee. In this connection, Ballard testified that, in reality, the job as case backer was MORGAN FURNITURE COMPANY 983 not a full-time job, but that nevertheless Garrison did nothing else. He further testified that a competent case backer can do 150 cases per day, but whenever the line reached 100 cases per day Garrision would ask for help. Ball testified that although Garrison's production was low , the quality of his work was satisfactory. Furthermore, Ballard testified that Garrison "lacked interest" in his job, and would frequently be absent from his post talking to other employees. Ball testified that Ballard had comp laincd to him "quite a bit" about Garrison leaving his job to talk to others. Lynch testified that be had observed Garrison wasting time, late for work, and leaving early. Adams also testified that Gar- rison frequently loafed and talked to other employees. Morgan testified that he had observed Garrison frequently away from his work talking to other employees in the fall of 1949, and that he (Morgan) referred the matter to Ballard, Garrison's foreman. However, in no instance does it appear that any of Gar- rison's superiors had ever complained to him about his alleged loafing, or his alleged arriving to work late, or his alleged leaving early. This contrasts sharply with the treatment accorded Burleson, who received a written reprimand from the Respondent for leaving work early on a single occasion. Moreover, neither the times, the places, nor the circumstances leading up to these alleged shortcomings were described by any witness. As to Garrison' s alleged poor production, no objective criteria were offered ( such as production records or the testimony of others who had performed case backing) which would afford a reliable means of comparison between Garrison's production and the average or normal production of case backers.79 Under these circumstances, I am con- vinced and find that these alleged shortcomings of Garrison were afterthoughts, seized upon by the Respondent to explain its actions. Ad zms testified that Garrison's attitude was "frivolous," but did not elaborate. Ball testified to the unsatisfactory nature of Garrison's attitude, and explained this testimony by stating that he had heard Garrison say "damn the Company." Ball did not describe the time or place of the statement, or who was present, or the circumstances which preceded it. I am not convinced, however, that Garrison's "attitude" toward the Respondent was a motivating factor in the determination to lay him off. I believe that, at most, it was merely a minor makeweight. I turn now to an incident which allegedly occurred around Thanksgiving 1949, on which the Respondent relies heavily as explaining its conduct toward Garrison. Several employees of the assembly department testified that Gar- rison approached them in the plant during working hours and suggested that they deliberately slow down in their work. Garrison denied that this incident had taken place. I deem it unnecessary to resolve this conflict. In any event, it is undenied that one of these employees, John Branton , reported to Ballard that Garrison had attempted to get other employees in the department to slow down, and named the others involved. According to Ballard, on the following day he told Garrison of Branton 's accusation, Garrison denied the accusation, and Ballard did nothing further about the matter because "it was just two men's word, is all." Ball, however, testified that Ballard had informed him late in 1949 that Garrison had attempted to get other employees in the department to slow down. Lynch testified that in the fall of 1949 he learned of Garrison's attempt to cause a slowdown in the assembly department, that he discussed with Ballard, Ball, and the Respondent's attorney the advisability of discharging Garrison, and that on the advice of the Respondent's attorney it was decided to wait until after the contract had expired and Garrison's "superseniority" had 79 Horn Manufacturing Company, Inc, 83 NLRB 117T, 1201. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD run out. Lynch further explained that the attorney's advice was based upon fear that the discharge of Garrison at that time-during the period when the UIU and the Carpenters were conducting rival campaigns and when the Respondent was in dire financial straits-might have caused an "upheaval" in the plant. However, it is undisputed that none of the four employees whom it is alleged that Garrison attempted to slow down were questioned further on the matter by any foreman or official of the Respondent. At most, they were simply told by Ballard about 30 minutes after Branton's report of the incident that they would "probably" be wanted " sometime" as witnesses to what Garrison had said. There is no question that, if the Respondent had been convinced that Garrison had been attempting to induce other employees to slow down, the Respondent would have had legal grounds for discharging him.80 But that was not the case. In view of Ballard's attitude that nothing further should be done in the matter because it was just one man's word against another ; the failure of the Respondent to make any further attempt to investigate the incident ; and the statement in Garrison's file that "we have not yet proved it definitely," I conclude that Branton's accusation that Garrison had attempted to cause a slowdown in the assembly department was not taken too seriously by Ballard and other officials of the Respondent and was not one of the reasons considered by the Respondent in laying off Garrison, but was merely an afterthought seized upon by the Respondent to justify its discriminatory action. The Respondent's failure to recall Garrison in June 1950 is also significant Ball testified that Garrison was not recalled during the first 6 months after his layoff because there was no job available for which he was qualified, and that after the 6-month period, he was not recalled because of his attitude toward the Respondent. However, there were jobs available in the assembly depart- ment within 6 months of Garrison's discharge. On June 19, 1950, former em- ployee Earl D. Rodgers was rehired as a case subassembler in the assembly department. Beginning with June 22, 1950, numerous trainees were hired in the assembly department. In view of Garrison's wide experience in the plant and his high wage code, I am unable to believe that Garrison was not qualified to fill any of these vacancies. Ball's contrary testimony is therefore rejected. In view of the Respondent's resolve to utilize the economic layoff to rid itself of the UIU officers ; Garrison's officeship in and vigorous advocacy of the UIU ; the Respondent's policy of retaining those employees like Garrison who pos- sessed wide experience in the plant and a high wage code; the failure of the Respondent to warn or discipline Garrison with respect to his alleged short- comings; the failure of the Respondent to investigate the incident in which Garrison is alleged to have attempted a slowdown ; the unusual consultation between officials of the Respondent before the discharge; the Respondent's decision to discharge Garrison and not to rehire him, instead of merely laying him off ; the timing of the discharge while the Board election was pending ; the failure of the Respondent to recall Garrison in June 1950 when jobs were avail- able which he was qualified to perform ; the anti-UIU animus of the Respondent ; and the Respondent's ignoring of the UIU's demand for Garrison's reinstatement, I conclude that Garrison's discharge on January 4, 1950, and the Respondent's failure to rehire him thereafter, was due to discriminatory motives, and was part of the Respondent's scheme to rid itself of the UIU officers. By such con- duct, the Respondent discouraged membership in the UIU and encouraged membership in the Carpenters, in violation of Section 8 (a) (3) of the Act, 80 Elk Lumber Company, 91 NLRB 333. MORGAN FURNITURE COMPANY 985 and interfered with, coerced, and restrained its employees in violation of Section 8 (a) (1) of the Act 81 9. The layoffs of Tillie McClellen and Della Redmond a. Facts Tillie McClellen, a sister of Stokes McClellen. was employed by Morgan Manu- facturing Company in August 1945 as a helper in the upholstery department. Della Redmond began to work for Morgan Manufacturing Company in 1944 as a hand sander in the finishing department. When the Respondent took over the plant of Morgan Manufacturing Company, McClellen and Redmond-like other employees-were retained by the Respondent. They were laid off in 1946 but returned to the Respondent's employ in 1947, McClellen as a drawer sander and waxer in the finishing department and Redmond as a sander and waxer of doors in the same department. During 1949 they were laid off several times for short periods. The seniority roster of the finishing department as of December 4, 1949, lists McClellen as a drawer sander and waxer with "job" seniority from March 1, 1947, and "plant" seniority from August 30, 1945; it shows Redmond as a drawer sander and waxer with "job" seniority from January 1, 1945, and "plant" seniority from December 18, 1944. Of the four drawer sanders and waxers listed on this roster, Redmond stood second and McClellen fourth with respect to "job" seniority. Of the 35 employees remain- ing in the department on December 31, 1949, Redmond stood 13th and McClellen stood 18th with respect to "plant" seniority B2 In June 1949 the UIl' processed a grievance with respect to a merit increase allegedly due McClellen, and was successful in obtaining for her a 3-cent per hour merit increase. McClellen's pay during her entire employment rose from 70 to 88 cents per hour; Redmond's from 83 to 93 cents per hour. Both were in wage code 2 during all material times, and were satisfactory employees. Indeed, McClellen's work was complimented by her foreman. Both McClellen and Redmond were members of the UIU, and their dues were checked off to that organization as of December 31, 1949, when the con- tract between the Respondent and the UIU terminated. As of that date, McClellen was it trustee of the UIU local, and Redmond was a rank-and-file member. Morgan testified without contradiction that the switch to the manufacture of new furniture early in December 1949 caused a "drastic" change in the finishing department, eliminating such operations as graining. According to Morgan, it was anticipated that the number of employees in the finishing department would be reduced from 35 to approximately 19 employees. In fact, the finishing department on December 4, 1949, consisted of 37 employees. During December 1949, 2 employees of the finishing department were laid off. Six more finishing department employees were laid off on January 11 and 20, 1950, including McClellen and Redmond on the later date. They were given separation slips showing the reason as "lack of work" Lynch also told McClellen on the same day that that was the reason for her layoff. All the 81 In reaching this conclusion , I have not relied upon Garrison's testimony that Morgan had stated that "he could not run his plant under the damn management of Furman (sic) Bradley and Mitchell Garrison ." Although this testimony was undenied and is credited, I find it the type of exclamation which may easily have been made in exasperation during the heat of bargaining . Therefore it is insufficient standing alone to prove Morgan's antipathy toward Garrison . I likewise find immaterial the fact that the Respondent presently employs Garrison 's father. 83 See Appendix D. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people to be laid off were selected by Payne, foreman of the department. Of the 8 people laid off from the finishing department during December 1949 and January 1950, only McClellen and Redmond were never recalled ; and only Mc- Clellen, Redmond, and one other (Roy W. Hightower) were members of the UIU " Five additional employees were laid off from the finishing department during the next 2 months, and 2 formerly laid-off employees were recalled during the same period, so that by the end of March 1950, the number of employees remaining in the department was 26.84 It is clear and I find that the layoffs in the finishing department, like those in the assembly department, were due to economic necessity" At the time of her final layoff, Redmond requested Ball and Lynch to give her a letter of recommendation. Lynch replied that he did not see the necessity for one ; if any prospective employers requested references they should contact Lynch or Ball directly. Redmond returned to the Respondent's plant seeking employment approximately 5 or 6 times. On one occasion she talked to Ball, who said that he did not have any opening at that time. On another occasion, she applied to a Mr. Sparks,86 who "was calling for rub room hands." Redmond told Sparks that that was her job. Sparks then turned to Payne, who was present, and said : "Mrs. Redmond says she is a rub room hand." Payne re- plied: "I can't use Mrs. Redmond just yet," and walked away. McClellen returned to the Respondent's plant to apply for rehire approximately twice a month. When she applied to Ball, he replied that he did not have any openings but as soon as there were any vacancies he would call her; she would be the next woman hired. In June 1950 she talked to Sparks, who told her : "I am sorry, but the position has been taken." On the same day, Ball told her, "I hired two this morning." Neither McClellen nor Redmond has ever been rehired, although their names were among those for whom the UIU demanded reinstatement in its letter of June 22, 1950. b. Contentions and conclusions The General Counsel contends that McClellen and Redmond were chosen for layoff because of their membership in the UIU, and that employees with less seniority were either retained when McClellen and Redmond were laid off, or were recalled in preference to them when vacancies occurred. Conversely, the Respondent claims that a reduction in the number of employees in the finishing department was decided upon when the Respondent changed to the manufacture of less expensive suites ; that the determination of which individuals to lay off in the department was left entirely to the foreman, Payne ; that Payne followed seniority in effectuating the layoffs ; and that there have been no vacancies since the layoffs which either McClellen or Redmond was qualified to fill. 33 See Appendices A and B. See Appendix F. 88 McClellen's testimony that she had been working overtime "every night" just before her final layoff, and that there were many drawers ready to be processed is rejected. McClellen and Redmond testified that Hervey Hurt told them that he could not under- stand why anyone was being laid off because there was so much work to do. McClellen described Hurt as a foreman ; Redmond described him as a leadman . However, Payne and Lynch both testified credibly that Hurt was an inspector lacking authority to hire or dis- charge employees or effectively to recommend their hire or discharge . I so find. Accord- ingly, the Respondent's motion to strike testimony regarding conversations between Hurt and any other rank-and-file employee not in the presence of a supervisor , upon which ruling was reserved, is hereby granted. 8' With regard to Sparks' position , Redmond testified merely : "he was working there, the one that done the hiring." The Respondent did not take the position that Sparks had no authority to hire, and his name does not appear on any list of rank -and-file employees. Accordingly, I find that he had such authority. MORGAN FURNITURE COMPANY 987 What were the Respondent's intentions with respect to the future reemploy- ment of McClellen and Redmond at the time of their layoffs on January 20, 1950? As in the case of Fogs and Burleson, described above, neither McClellen nor Redmond was given a letter informing her that the layoff was permanent. Furthermore, Lynch testified that the Respondent would have no objection to recalling McClellen or Redmond if and when either was needed. Accordingly, it is found that, at the time that McClellen and Redmond were laid off, the Respondent had no intention not to rehire them eT I turn now to a consideration of the basis used by Payne to select the em- ployees to be laid off. The contract between the Respondent and the UIU having expired, the Respondent was not under any contractual obligation to follow strict seniority. While the record presents some conflict on the subject, I find that after January 1, 1950, the Respondent laid off employees on the basis of both ability and some kind of seniority, and that one of the factors taken into consideration was the ability of the particular employee to perform more than one job. The seniority roster of the finishing department as of December 4, 1949, lists four drawer sanders and waxers as follows : Name Job Seniority Plant Seniority Date Order Date Order Dora A. Roberts----------------------------------------- Aug. 1,1944 1 June 12,1944 2 Della J. Redmond--------------------------------------- Jan. 1,1945 2 Dec. 18,1944 3 Evelyne R Styles---------------------------------------- Sept. 1, 1946 3 Mar. 24 1944 1 Tillie L. McClellen-------------------------------------- Mar. 1,1947 4 , Aug. 30,1945 4 Redmond and McClellen were laid off in January 1950, Styles in February 1950, and Roberts in March 1950. McClellen and Redmond were never re- called ; Roberts and Styles-who were not members of the UIU as of Decem- ber 31, 1949-were recalled, although the record does not supply the dates of their rehire. In this connection it should be noted that, of the four drawer sanders and waxers, McClellen was the junior with respect to both "job" and "plant" seniority. Redmond stood second as to "job" seniority and third as to "plant" seniority. Therefore, if strict "plant" seniority was used in the January 1950 layoff, the layoffs of McClellen and Redmond were proper ; whereas if strict "job" seniority had been used, McClellen and Styles would have been laid off and Redmond would have been retained until February. In short, Mc- Clellen's layoff in January 1950 was in accordance with both "job" and "plant" seniority, while that of Redmond followed "plant" seniority but did not follow "job" seniority, as defined in the expired contract between the UIU and the Respondent. But Payne's failure to follow strict "job" seniority in Redmond's layoff is no more significant than his conduct with respect to Mary Hembree, who was not a UIU member as of December 31, 1949. Although Hembree was the ranking grainer and glazer both by "job" and "plant" seniority, she was laid off in February 1950 while other grainers and glazers were retained. I there- $T In support of his contention that the Respondent never intended to rehire either McClellen or Redmond, the General Counsel included on page 12 of his brief "Chart II" purporting to show that Lynch , in connection with the Board election , submitted to the Board agent a document Indicating that they had been permanently discharged. This document was neither submitted in evidence nor included in the official Board file in Case No. 34-RC-170. I shall therefore disregard it. But even if it were to be considered, I deem it insufficient in itself to overcome other evidence that McClellen and Redmond were only temporarily laid off. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore conclude that Payne did not follow a strict seniority system in selecting individual employees for layoff, either before or after the Board election. There was considerable evidence as to the various jobs performed by Mc- Clellen and Redmond during the course of their employment , some of which was conflicting. Without further burdening this report by a detailed analysis of this testimony, I am of the opinion that the General Counsel has failed to prove that McClellen and Redmond were clearly more skilled and versatile than Styles and Roberts, or indeed than other employees who were either not laid off, or if laid off were recalled. In this connection, it is significant that McClellen and Redmond were in wage code 2, a relatively low wage code. The General Counsel maintains that, prior to the Board election of January 31, 1950, the Respondent attempted to use the economic layoffs to rid itself of all UIU members . In considering this contention , it will be recalled that in December 1949 or January 1950 Ball told employee Emmons McDaris that "all that didn't turn over, would be out of a job ." It has been found that this state- ment was intended as a threat that any employee who did not desert the UIU in favor of the Carpenters was in danger of losing his job . However, I do not believe that this evidence is sufficient to establish a decision by the Respondent to carry out such a threat by ridding itself of all UIU members other than the officers discussed above. Indeed, MeDaris-the employee to whom the threat was made-was not a member of the UIU as of December 31, 1949, but never- theless was laid off at the same time as McOlellen and Redmond In addition, the General Counsel has attempted to prove by statistics the Respondent's scheme to lay all UIU adherents before the Board election. The General Counsel's brief contains the following statement : "Regardless of motive or intent, the high percentage of UIU members and officers discharged necessarily operated to encourage membership in the Carpenters and Joiners at Morgan Furniture Company and discourage membership in the UIU." I do not adopt that view of the law. The General Counsel's brief also states : "No person discharged in January 1950 or December 1949 who had not revoked his or her check-off authorization with the Company was rehired by the Re- spondent." This statement is inaccurate, as the record shows that Hightower, who had not revoked his dues checkoff to the UIU, was laid off in January 1950 but was recalled in February 1950, and that Randolph, who likewise had not revoked his UIU dues checkoff, was recalled by the Respondent but failed to report 88 Moreover, the General Counsel's brief states : "Every employee laid off during December 1949-January 1950-who had revoked his UIU checkoff was rehired, with one exception." This also is inaccurate. Branton, Burleson, Foxx, Parton, Revis, and Sorrells-all of whom had revoked their UIU dues checkoffs-were never recalled by the Respondent." The true statistics of the December 1949 and January 1950 layoffs are as follows: Of 19 known UIU supporters, 8 (42 percent) were laid off, of which 2 (25 percent) were recalled." Of approximately 85 other employees, 16 (19 percent) were laid off, of which 10 (62 percent) were recalled.' Of the employees in the Respondent's plant prior to the layoff, 19 (18 percent) were known or believed to be UIU sup- porters. Of the 24 employees laid off during the months of December 1949 and January 1950, 8 (33 percent) were known or believed to be UIU adherents. 88 See Appendix A. 80 Although Branton, Parton , and Sorrells thereafter were employed by Morgan Manu- facturing Company, that Company was a separate corporation , and the General Counsel has failed to establish that it was either the alter ego or the agent of the Respondent in hiring these laid-off employees. "" See Appendix A. 91 See Appendix B. MORGAN FURNITURE COMPANY 989 After the layoffs had been completed, the known UIU adherents remaining numbered 11, or approximately 14 percent of the Respondent's remaining working force. While these statistics show a disproportionate number of UIU supporters laid off and not recalled, they are not so one- sided as to dictate a conclusion that the Respondent deliberately sought to rid itself of all UIU members. Indeed, when the layoffs were over, 11 known UIU adherents had not been touched, while 16 employees known not to have been UIU members were laid off. Under these circumstances, I am unable to adopt the contention of the General Counsel that the layoffs were designed to rid the Respondent entirely of all UIU adherents, as contrasted with UIU officers." Therefore, I am of the opinion that the General Counsel has failed to prove that the layoffs of McClellen and Redmond on January 20, 1950, were discriminatorily motivated. I turn now to the Respondent's failure to recall McClellen and Redmond, despite the inclusion of their names in the UIU's letter to the Respondent of June 22, 1950. As of December 4, 1949, there were 11 women in the finishing department. Of these, Redmond, McClellen and 2 others had not revoked their dues checkoffs to the UIU as of December 31, 1949. None of these women was laid off during December 1949. In January 1950, in addition to the layoff of McClellen and Redmond, 1 other woman was laid off, Helen Tucker, the junior grainer and glazer, who was rehired during February 1950 and eventually dis- charged °d In February and March 1950 Styles and Roberts, the 2 remaining drawer sanders and waxers, and Howington, the senior grainer and glazer, were likewise laid off. All 3 of these women were later recalled, but the dates of their recalls are not shown in the record." McClellen and Redmond were the only women laid off in the finishing department who were never recalled, but no new employees were ever hired to take their places. Although Payne recalled women for hand sanding after the production of television cabinets commenced in June 1950, he testified that work other than hand sanding was too heavy for women, and that all the women retained in the finishing department or recalled since January 20, 1950, could perform more jobs and were more skilled than either McClellen or Redmond. In view of the failure of the General Counsel to prove that the Respondent had determined to rid itself of the rank-and-file adherents of the UIU; the eco- nomic necessity for the layoffs ; the low "job" and "plant" seniority of McClel- len ; the low "plant" seniority of Redmond ; the relatively low wage code of both ; the failure of Payne to follow seniority in laying off Hembree, a non- member of the UIU; the fact that Payne alone selected the individual employees to be laid off without consulting his superiors ; the lack of determination by the Respondent not to rehire McClellen and Redmond at the time it laid them off ; and the fact that they were not replaced and that there have been no positions open since their layoffs which they were qualified to fill ; I conclude that the General Counsel has failed to prove by a preponderance of the evidence that the "Contrast N. L. R B. v. W. C. Nabors Company, 196 F 2d 272 (C. A. 5), where 23 of the 26 laid-off employees were union members. 9e Tucker's discharge occurred on May 26 , 1950. It does not appear that she was re- placed. However, assuming arguendo that McClellen and Redmond were qualified to do the work of a grainer and glazer, Roberts and Hembree were senior to both of them, and therefore might logically be considered the laid-off employees most likely to be recalled to take Tucker's place. °" See Appendix E. Although Payne testified that he had called back Howington, Taylor, Towe, and Jones "not too long since," the record does not indicate that any of these four women were laid off during 1950. Accordingly, I conclude that he was referring to a layoff which occurred in 1951, and which is not material to the issues herein. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent laid off either McCiellen or Redmond on January 20, 1950, or there- after failed or refused to recall them because of their membership in or adher- ence to the UIU 86 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following : CONCLusiows OF LAW 1. Upholsterers' International Union of North America, AFL, and Interna- tional Brotherhood of Carpenters and Joiners of America, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Wiley Morris, Ernest Reid, and Mitchell Garrison, thereby discouraging membership in Upholsterers' International Union of North America, AFL, and encouraging membership in International Brotherhood of Carpenters and Joiners of America, AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By such conduct, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce and are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not discriminated with respect to the hire and tenure of employment of Stokes McClellen, Annie Ada Foxx, Maude Burleson, Tillie McClellen, or Della Redmond. [Recommendations omitted from publication in this volume.] The Respondent's motion to dismiss the complaint , upon which ruling was reserved, Is disposed of in accordance with the findings and conclusions herein. MORGAN FURNITURE COMPANY 991 Appendix A Employees who had not revoked UIU dues checkoff or who were members in good standing of the UIU as of December 81, 1949 Name On which list name appears 1 Position Depart- ment Laid off 3 Recalled 1. Paul Bacon------------ Both 4----- --------------------------- -------- No----------- 2 Paul Edwards_________ UIU 4_____ No 3. Arnold Lee Ellis_______ Both 4 Drawer putty and sand A No 4. MitchellGarrison______ UI4_____ Casebacker_______________ A Jan. 4, 1950_ No. 5. E. Elmore Hall________ UI4_____ Case stick up_ ___________ A No___________ 6. Roy Hightower-------- Both______ Steelwool man___________ F Jan. 20,1950 Feb. 28,1950. 7. Ida Lee Jones__________ Both 4_____ ___________________________ F No___________ 8. Ernest McClellen-____ Both 4_____ ___________________________ _____ Jan. 20,1950-_ No. 9. Tillie McClellen_______ Both 4----- F Jan. 20,1950 No. 10. Wiley Morris__________ Both4_____ Boilerman_______________ M Jan. 3,1950___ No. 11. Billy A. Randolph----- Resp______ _____________________ ______ ________ Jan. 20,1950__ Yes 7 12. Della J. Rednion______ Both 4_____ Drawer sander and waxer- F Jan. 20,1950__ No. 13. James Reeves---------- UIU 4----- --------------------------- -------- No----------- 14. Ernest Reid___________ Neither' _ Stock boy________________ A Jan. 3, 1950___ No. 15. Baxter Renfro --------- Both 4_____ Utility man______________ A No_____-_____ 16 Addle A. Towe-------- Resp 4----- --------------------------- -------- No----------- 17. John H Towe_________ Both 4_____ - No 18 Grover C. Truell----- Both 4----- --------------------------- -------- No----------- 19. Ernest P. Williams---- Both 3----- --------------------------- -------- No----------- I The Respondent's list was of those who had not revoked their UIU dues checkoffs prior to December 31, 1949, the UIU's list was of UIU members in good standing as of the same date. 3 A-assembly, F-finishing, M-maintenance 3 Layoffs in December 1949 and January 1950 only are considered, as layoffs after January 31, 1950, did not affect the Board election of that date. 4 Also identified as a UIU member by the testimony of Paul Edwards. 3 Reid appeared on neither list, but was mistakenly considered by the Respondent to have been a UIU officer as of December 31, 1949. 3 Not a UIU member according to Edwards' testimony. I Recalled but failed to report, date not shown. NOTE, All layoffs in this list took place in January 1950. There were no layoffs of these employees in December 1949. Appendix B Employees laid off in December 1949 and January 1950' other than those listed in Appendix A Name Date laid off Position Depart- ment3 Recalled 1. Sam Allen_____________________ Dec 0, 1949 Repairman finish_______________ F June 29.1950 2. John Branton_________________ Dec. 7. 1949 Case bed inspector_____________ A No. 3 3. Maude Burleson_______________ Dec. 7, 1949 Drawer guider_________________ A No. 4. Perry Burnette_ -------------- Dec.30, 1949 --------------------------------- F Oct. 11, 1950. 5. Garrett Edwards______________ Dec 30 1949 ------------------------------ June 21,1950. 6. Annie Ada Foxx_______________ Dec. 7, 1949 Drawer guider_________________ A No. 7. Ott King---------------------- Jan. 11, 1950 ---------------------------- F June 26,1950. 8. Homer Johnson_______________ Jan. 31, 1950 Bed backer_____________________ May 26.1950. 9. Emmons McDaris_____________ Jan. 20,1950 Steelwoolman__________________ F Aug. 21, IM. 10. Margaret Morgan_____________ Dec. 7, 1949 Drawer clamp operator-------- A Dec. 19, 1949.' 11. Floyd Parton__________________ Jan. 9, 1950 Patch and repair--------------- A No' 10. Clara Quackenbush___________ Dec. 7 1949 --------------------------------- A Dec. 19,'1949. 13. Ted Bevis --------------------- Dec. 2,1949 Patch and repair_______________ A No. 14. Theodore B. Smith____________ Jan. 31,1950 ----------------------------- June 26,1950. 15. Roy Sorrells__________________ Dee. 8,1949 Case bed inspector A No' 16. Helen Tucker_________________ Jan. 11,1950 1 Grainer and glazer_____________ F Feb. 28, 1950. i See footnote 3 to Appendix A. 3 See footnote 2 to Appendix A. 3 Employed thereafter by Morgan Manufacturing Company. 4 Later laid off a second time in March 1950, then recalled for 6 days in May 1950 for a test resulting from a grievance . After the test, she did not return. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix C Relative seniority of employees in assembly department "Job" seniority "Plant" seniority Name Position Pay Pay Pay Pay period period period period ending ending ending ending 12/4/49 12/31/49 12/4/49 12/31/49 Abernethy-- ____________ Patch and repair__________________ 1 1 10 8 Parton I___________________ Patch and repair__________________ 2 2 1 1 Holcomb__________________ Patch and repair__________________ 3 3 2 2 Parham ___________________ Patch and repair__________________ 4 4 27 23 Mauck____________________ Patch and repair__________________ 5 5 17 13 Revis 2-------------------- Patch and repair----------------- c 6 --------- 34 ---------- Reece --------------------- Patch and repair ------------------ 5 6 6 35 29 Mitchell___________________ Case fitter ------------------------- 1 1 9 7 Roberts___________________ Case fitter- ------------------------- 2 2 16 12 Bishop____________________ Case fitter---- ____________________ 3 3 23 19 Sales ---------------------- Case fitter ------------------------- 4 4 7 5 Edwards __________________ Utility man _________ 1 1 25 21 Renfro-------------------- Utility man ----------------------- 2 2 24 20 SorrellS Case bed Inspector ---------------- 1 ---------- 4 ---------- Branton a_________________ Case bed inspector ---------------- 2 __________ 29 Morris a__ _____ Case sub assembler________________ 1 __________ 13 --------- Rogers Case clamp operator______________ 1 1 3 3 Johnson___________________ Case clamp operator ______________ 2 2 8 6 Hall_______________________ Case stick up_____________________ 1 1 18 14 Brinkley__________________ Bad clamp operator_______________ 1 1 33 28 Franklm__________________ Case topper_______________________ 1 1 22 18 Ballard____________________ Case cleaner, hand sander--------- 1 1 31 26 Staffon____________________ Case cleaner, hand sander--------- 2 2 12 10 Hembree__________________ End assembler- __________ 1 1 11 9 Morgan 4__________________ Drawerclampoperator ------------ 1 1 6 4 Penland ___________________ Base to case_______________________ 1 1 15 11 McFee ___________________ Base to case_______________________ 2 2 19 15 Burleson 2----------------- Burl Drawer guider----------------- 1 - ---------- s--------------------- Drawer guider _ ------------------ 2 4 ---------- Ellis ----------------------- Drawer putty & sand____________ 1 1 30 25 Foster--------------------- Stock boy--------------- ---------- 1 1 20 16 Reid I_____________________ Stock boy------------------------ 2 2 21 17 Garrison I_________________ Case backer_______________________ 1 1 32 27 Honeycutt ---------------- Flat sander ------------------------ 1 1 36 30 Ray----------------------- Not classified--------------------- ---------- ---------- 28 24 Quackenbush 4____________ Not classified_____________________ __________ __________ 26 22 I Laid off in January 1950 and not rehired. i Laid off before 12/31/49 and not rehired 3 Transferred out of department before 12/31/49. 4 Laid off and rehired before 12/31/49. E Tie. NOTE 36 employees during payroll week ending 12/4/49, 30 during payroll week ending 12/31/48. MORGAN FURNITURE COMPANY Appendix D Relative seniority of employees in finishing department 993 "Job" seniority "Plant" seniority Name Position Pay Pay Pay Pay period period period period ending ending ending ending 12/4/49 12/31/49 12/4/49 12/31/49 Williams------------------ Finishing G L-------------------- 1 1 10 9 Harwood------------------ Grainer and glazer inspector------- 1 1 21 20 Rogers --------------------- Grainer and glazer inspector ------- 2 2 2 32 2 30 Dowdy------------------- Repairman finish----------------- 1 1 6 6 S. Allen '----------------- Repairman finish----------------- 2 ---------- 8 ---------- J. R. Emory--------------- Spray operator A------------------ 1 1 18 17 B. Emory ----------------- Spray operator A------------------ 2 2 17 16 R W Whitt-------------- Rubbing G L-------------------- 1 1 24 23 Burrell -------------------- Finish material mixer ------------- 1 1 34 32 Bailey --------------------- Decorator and grainer------------- 1 1 35 33 Wise--------------------- Decorator and grainer------------- 2 2 16 15 Hembree ------------------ Grainer and glazer ---------------- 1 1 7 7 Howington---------------- Grainer and glazer ---------------- 2 2 12 11 Penland------------------- Grainer and glazer ---------------- 3 3 2 33 2 31 J. W. Whitt--------------- Grainer and glazer ---------------- 4 4 36 34 Bishop-------------------- Grainer and glazer ---------------- 5 5 22 21 Tucker 2------------------- Grainer and glazer ---------------- 6 6 20 19 Ellenburg ----------------- Spray operator-------------------- 1 1 27 26 N. A Allen--------------- Spray operator -------------------- 2 2 28 27 Sorrells-------------------- Glaze sprayer and rubber--------- 1 1 1 1 Emery-------------------- Filler sprayer --------------------- 1 1 37 35 Watts--------------------- Machine rubber ----- -------------- 1 1 23 22 Anders ---------- ---------- Machmerubber ------------------- 2 2 25 24 Cook---------------------- Machine rubber ------------------- 3 3 31 29 Hightower 2 -- ------------ Steel wool man -------------------- 1 1 15 14 McDaris2 ................. Steel wool man -------------------- 2 2 26 25 Roberts------------------- Drawer sander and waxer--------- 1 1 13 12 D. J. Redmon 2------------ Drawer sander and waxer--------- 2 2 14 13 Styles --------------------- Drawer sander and waxer --------- 3 3 11 10 McClellan 2--------------- Drawer sander and waxer--------- 4 4 19 18 Jones---------------------- Not classified--------------------- ---------- --------- 4 2 42 Towe-------- ---------- Not classified--------------------- ---------- ---------- 4 3 4 3 King 2--------------------- Not classified--------------------- ---------- ---------- 4 4 Taylor-------------------- Not classified-------------------- --------- ---------- 5 5 C. E Redmon ------------ Not classified --------------------- ---------- ---------- 9 8 Crain---------------------- Not classified --------------------- ---------- ---------- 29 28 Burnette '----------------- Not classified--------------------- ---------- ---------- 30 NOTE: 37 employees during payroll week ending 12/4/49; 35 during payroll week ending 12/31/49. 1 Laid off before 12/31/49, recalled in 1950. 2 Laid off during January 1950. 2 Tie. 4 Tie. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix E Women employed in the assembly and finishing departments as of December 4, 1949 N Seniority Re- voked ame Position i UIU Laid off Recalled "Job" "Plant" checkoff Assembly bepartment Morgan ------ Drawer clamp op- Aug. 2,1948 Apr. 6,1943 yes --- Dec. 7,1949- Dec 19,1949.1 erator. Burleson 2---- Drawer guider-_-_ June 1,1943 Mar. 29,1943 Yes --- Dec. 7,1949- No Foxx 2-------- Drawer guider ----- Feb. 1,1944 Dec. 13,1943 Yes-_- Dec. 7,1949- No Quackenbush- Not classified_____ _______________ Sept. 24,1945 Yes --- Dec. 7,1949_ Dec 19, 1949 2 Finishing Department Wise 2-------- Decoratorandgla- Apr. 5,1947 Mar. 28,1945 Yes --- No--_-_----_- Hembree-_--_ zer Grainer and glazer. Nov. 1,1944 June 3,1943 Yes--- Feb. 2,1950_ Yes.' Howmgton-__ Grainer and glazer. July 1,1946 May 22,1944 Yes--- No_-__------ Tucker------- Grainer and glazer- Sept. 1,1947 Sept. 24,1945 Yes-_- Jan. 11,1950_ Feb 28,1950 4 Roberts 2----- Drawer sander & Aug. 1,1944 June 12,1944 Yes --- Mar. 3,1950_ Yes 2 waxer. Redmond 2--- Drawer sander & Jan. 1,1945 Dec. 18,1944 No---- Jan 20,1950- No. waxer. Styles --------- Drawer sander & Sept. 1,1946 Mar. 24,1944 Yes-_- Feb -,1950- Yes.s waxer. McClellen 2--- Drawer sander & Mar. 1,1947 Aug 30,1945 No ---- Jan. -,1950_ No. waxer Jones --------- Not classified----- --------------- Mar. 10,1943 No ---- No-_--------- Towe--------- Not classified----- --------------- Mar. 10,1943 No---- No------_---- Taylor-------- Not classified_____ _______________ Mar. 29,1943 Yes--- No ----------- I Laid off again Mar. 17, 1950 to May 19, 1950, given trial, left the Respondent's employ June 2, 1950. 2 Transferred out of the assembly department Aug. 1, 1950. After that date, no women employed in the assembly department. 2 Date not shown. 4 Discharged May 26, 1950. NOTE: Wage code showe in parenthesis after name. Appendix F Total employees separated and acquired December 1949-March 1950 Dec. 1949 Jan 1950 Feb. 1950 Mar. 1950 Laid off or discharged , assembly department --------------------------- 7 3 3 Laid off or discharged, finishing department---------------------------- 2 6 4 Laid off or discharged , other departments ------------------------------ 1 2 4 Quit--- ----------------------------------------------------------- ---- - Totallaid off, discharged or quit--- ------------------------------ 10 15 6 8 Reemployed ----------------------------------------------------------- 1 2 1 22 New hirings----------------------------------------------------------- 2 Total reemployed and new hirmgs------------------------------- g 3 2 1-- ------ Net change------------------------------------------------------------ -8 -12 -44 -8 1 Both in assembly department. 2 Both in finishing department. MORGAN FURNITURE COMPANY Appendix G NOTICE To ALL EMPLOYEES 995 Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, or any other labor organization of our employees, or encourage membership in INTERNATIONAL BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, or any other labor organization of our employees, by discharging, laying off, or refusing to reinstate them, or in any other manner discriminating in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UPHOLSTERERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951. WE WILL OFFER to Wiley Morris and Ernest Reid reinstatement to their former or substantially equivalent positions, without prejudice to any senior- ity or other rights and privileges previously enjoyed, as provided in the Trial Examiner's recommendations. WE WILL MAKE whole Wiley Morris, Ernest Reid, and Mitchell Garrison for any loss of pay suffered as a result of the discrimination against them, in the manner set forth in the Trial Examiner's recommendations. All our employees are free to become, remain, or refrain from becoming members of either of the above-named unions or any other labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951. MORGAN FURNITURE COMPANY, Employer. By ---------------------------------------- (Representative ) (Title) Dated --------------------- This notice must remain posted for 00 days from the date hereof, and must not be altered, defaced, or covered by any other material.